Illinois is not a community property state. When a couple files for divorce, a judge must evaluate the couple’s property and decide what is marital property and what is individual property. All marital property must be divided between the two parties equitably.
Legal Definition of Marital Property
Illinois law defines marital property as all property acquired by either spouse after the marriage with certain exceptions. This broad language means that in most cases the majority of the couple’s property will be considered marital property and will be divided by the judge, unless the couple comes to an agreement on their own.
The exceptions to marital property are:
- Individual gifts;
- Property acquired after a judgment of legal separation;
- Property that is the covered by a valid prenuptial or postnuptial agreement;
- Property that was awarded by a judgment to one spouse; and
- Any increase in value to any of the above exceptions to marital property.
Something that is excluded from marital property can become marital property if it is commingled. For example, if one spouse inherits a large sum of money and deposits the money into the joint checking account, and both spouses use the funds, the inheritance is now marital property.
How Marital Property is Divided
The mandatory equitable division of marital property does not mean everything is simply given a valuation and each side takes half of the value. Equitable means that given all of the factors involved, the property is divided fairly.
The major factors a judge must take into consideration when dividing marital property include the following:
- How the spouses contributed to the acquisition of property during the marriage, including contributions of a homemaker;
- Any fraud or misuse of the marital property by either spouse;
- The length of the marriage;
- The total valuation of the marital property;
- Any special economic circumstances;
- The health and ages of the spouses;
- Custody arrangements;
- Any alimony;
- Prior financial obligations from earlier marriages;
- Tax consequences; and
- The abilities of the spouses to earn more income and acquire more assets.
If the parties do not have a prenuptial or postnuptial agreement, then all of the marital property is up to be divided by the court. The parties are always able to come to their own agreement as to how the marital property should be divided. This agreement will need to be approved by the judge in the case, but the court respects most agreements.
If you have questions about property division, alimony, or child custody you need to speak with an experienced DuPage County divorce attorney. Call Sullivan Taylor & Gumina, P.C. today at 630-665-7676 to schedule a consultation.