Long before most couples file a petition for divorce, they begin at least informally talk about how to divide their marital property. For some, especially in more amicable situations, this can lead to more formal negotiations and the development of a mutually agreed-upon property settlement. For others, however, the first discussions are essentially the last, as neither party is willing to compromise or attempt to reach any type of agreement. These are the cases that most often end up in court, requiring a judge to determine how the marital assets and debts should be allocated between the divorcing parties.
Understanding the Law
While negotiation and cooperation are nearly always preferable to litigation, sometimes courtroom action is necessary to complete the divorce process. It is with this understanding that the Illinois Marriage and Dissolution of Marriage Act provides a measure of direction for the court regarding the division of the marital estate. First, the statute requires the court to determine what assets and debts are to be divided, typically including any property or obligations acquired by either spouse during the marriage. There are some exceptions, of course, and an attorney can help you determine what may or may not qualify.
Once the marital estate is established and the value of each asset and debt is determined, the court must then decide how it is to be divided. By law, the court must divide the estate equitably—not necessarily equally—based on all the consideration of all relevant factors, including, but not limited to:
- Each party’s contribution to the marital estate, including the contribution of a stay-at-home parent or homemaker;
- Any claims of asset dissipation by either party;
- The duration of the marriage;
- Obligations and rights of either party from a previous marriage;
- Age, health, occupation, and earning ability of each party;
- Provisions for the care of any children of the marriage;
- Whether the allocated property is in place of or in addition to spousal maintenance;
- Each party’s expected ability to earn income and assets in the future;
- The economic and tax consequences of the allocation process; and
- Any valid prenuptial or postnuptial agreement between the parties.
Obviously, any one of these concerns can be the source of serious disagreement between the spouses in particularly contentious divorce. Thus, the court must consider each carefully, and come to a well-thought out decision. It is important to note that, by law, marital misconduct, such as abuse, adultery, or other behaviors, is not to be regarded by the court in the allocation process.
Legal Guidance for Your Divorce
If you are considering divorce and would like to know more about property division in Illinois, contact an experienced Orland Park family law attorney. At our law firm, we are committed to helping clients avoid the acrimony of the courtroom whenever possible, but are fully prepared to litigate if necessary. Call Kezy & Associates today at 708-518-8200 for your free initial consultation.