Property Division in Divorce: We Each Get Half, Right?
The honest answer to that question is “maybe.” You and your spouse may, in fact, each end up with half of your marital assets, but an exactly even division is not guaranteed, and, in all honesty, probably not very likely either. This is thanks to the property division approach set forth under Illinois law, which takes a large number of factors into account when allocating marital property to each spouse.
In Illinois, the guidelines for division of property in divorce are contained in the Illinois Marriage and Dissolution of Marriage Act (IMDMA). The IMDMA, in addition to outlining directives for virtually all aspects of the divorce process, provides that all marital property it be divided “in just proportions.” This means that, when left to the court to decide, the division of property will be done equitably, and not necessarily equally.
The Property Division Process: Marital Assets
Under law, the first step in the division of property is determining what is to be included in the marital estate. The marital estate constitutes all assets deemed by the court to be marital property. Generally, any property acquired by either spouse during the course of the marriage is included in the marital estate. There are specifically designated exceptions, including gifts, inheritances, judgments following a legal separation, and any property excluded by a valid prenuptial or postnuptial agreement.
Each component of the marital estate must then have its value determined. This may be accomplished by agreement of the parties, the knowledge of the court, or by professional valuations. Professional valuations often include real estate appraisals, business valuations, and retirement account calculations. Valuations are necessary as a means of helping the court determine how to allocate the marital property.
Considerations for Distributions
Before allocating any assets or debt, the court must take into account the specific circumstances of the marriage and family. Statutorily necessary considerations include, but are not limited to:
- Each spouses contribution to the assets and value of the marital estate, including contribution of a homemaker or stay-at-home parent;
- The dissipation of marital or non-marital property by either spouse;
- The duration of the marriage;
- The value of property allocated to each spouse, and how the allocation will affect each party’s economic situation, including tax liabilities;
- Age, health, and occupation of each spouse, and the anticipated ability to earn income in the future;
- Provisions being made for children of the marriage;
- Whether spousal support is being awarded separately or included in the property allocation; and
- Any valid prenuptial or postnuptial agreement between the spouses.
Based upon these factors and any others deemed to be equitable and just, the court will distribute the marital estate between the divorcing partners. Therefore, yes, it is possible that each spouse will receive half of the marital property. However, it is much more likely that consideration of certain aspects of the marriage will push the allocation slightly toward one spouse or the other, while remaining fully equitable.
If you are considering a divorce and have questions about the property division process in Illinois, contact an experienced Will County divorce attorney. Call our office today to schedule a free consultation with a qualified lawyer who can explain your options and answer your questions.