Understanding the Asset Division Process During an Illinois Divorce
If you are looking to get a divorce, you have likely encountered a long list of things that must be done before the divorce can be completed. One of the many steps that must be taken during a divorce is dividing marital property. This is one of the areas of divorce that is notorious for producing arguments and disagreements, even if you and your spouse are otherwise on the same page. The decisions made during this process are decisions about nearly every single piece of property that you own. If you make decisions that are not in your best interest, it can affect you for the rest of your life.
Marital Versus Nonmarital Property
The first step in the asset division process is determining what is and is not subject to division. Illinois law states that all marital property is subject to division, except for a few circumstances. Marital property is considered to be any asset or debt that you or your spouse acquired during the marriage. Certain assets that were acquired during the marriage, however, are exempt from division. These items include property acquired from a gift or through inheritance, property acquired in exchange for such property, property excluded from division as per a valid prenuptial agreement, and any property acquired after a judgment of legal separation.
Understanding Equitable Division
Once you have determined the property that is actually subject to division, you will then have to determine who gets which assets and debts. The court encourages couples to come to their own property division agreement, but unfortunately, that is not always feasible
If a divorcing couple cannot form their own agreement, the judge will step in to make that decision for them. Before he or she makes that decision, the court will examine a variety of factors to determine what the best course of action is. Illinois uses the idea of an equitable division of property when the reins are handed over to the judge. This means that you are not guaranteed half of the marital estate, but a portion of the estate that the judge deems to be fair and just. To make this decision, the judge may look at a variety of things, including:
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Each person’s financial situation, including their current income and earning potential
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Each spouse’s age, health, occupation, and mental and physical needs
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How long the couple was married
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The terms of any existing prenuptial or postnuptial agreement
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Whether the current parenting plan (if there is one yet) requires either spouse to dedicate time to care for the children
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Tax consequences that may arise from decisions made during the division process
Sources:
https://www.ilga.gov/legislation/ilcs/ilcs5.asp?ActID=2086&ChapterID=59
