You and your spouse may have accumulated ample property together during your marriage. Figuring out how to divide this property during divorce is often a hotly contested issue. Property division laws in Illinois can affect how your property is divided if you and your spouse are unable to reach an amicable marital settlement agreement.
If you are going through a divorce and need guidance, the asset division lawyers from STG Divorce Law can help. Contact us today to discuss your case in a confidential setting.
A note from Raif: I’ve been helping Illinois clients divide marital property for over 30 years, and the most common mistake I see isn’t about valuation or strategy. It’s about emotion. Clients fight hardest over the things that mean the most to them personally, even when those things are worth the least financially. If you take one piece of advice from this article, take this one: figure out which assets actually matter to your future, and let the rest go.
How Can a Divorce Lawyer Help with the Distribution of Property?
A knowledgeable family lawyer from STG Divorce Law can meet with you to explain Illinois marital property laws and how they can impact your divorce. Our experienced divorce attorneys can connect you with financial professionals who can help evaluate the property and discuss how the proposed distribution of property in your divorce can impact your financial future.
At STG Divorce Law, our experienced divorce lawyers understand you may have attachments to property based on emotions and your desire to have a secure financial future. We will work diligently to secure a favorable outcome in your case that helps achieve your specific objectives. Our family law attorneys can help negotiate a fair property settlement agreement or argue to advance your purpose in court.
Contact our asset division attorneys today for a confidential consultation.
What Are the Laws Concerning the Division of Property in an Illinois Divorce?
Most states follow either a community property or equitable distribution system for dividing marital property. In community property states, property is considered equally owned between the spouses. It is divided 50/50 between the spouses.
In equitable property division states, the court splits assets in a way it deems fair. However, this split is not always a perfect 50/50 split. Illinois courts encourage the settlement of property distribution and other divorce-related matters. If the couple cannot reach an agreement, the court uses equitable distribution laws to determine how to divide the property.
Even though Illinois is not a community property state, if you and your spouse previously resided in a community property state, those laws can impact your divorce case. An experienced attorney can help sort out marital property division.
Marital Property vs. Non-Marital Property
The first step in dividing property in a divorce is to apply the right property classification to each piece of property either spouse owns. Property is either considered “marital” or “non-marital” property. Under Illinois law, marital property includes all property and debts either spouse incurred during the marriage. Separate property includes the following:
- Property either spouse owned before the marriage
- Property acquired by gift or inheritance or in exchange for property acquired by gift or inheritance
- Property either spouse acquired after a judgment of legal separation
- Property excluded by valid agreements about property division, including prenuptial and postnuptial agreements
- Any court judgment ordered against one spouse to the other spouse
- All property acquired by a spouse by the sole use of non-marital property to use as collateral for a loan that was used to acquire property during the marriage
- The increase in value of non-marital property
Illinois also has laws regarding commingled property, which happens when marital and non-marital property are mixed.
Only marital property is divided during the property division process in Illinois.
An asset division attorney from our law firm can discuss these laws and how they can impact your property rights.
Factors Courts Consider When Dividing Property
For courts to determine how to divide marital property equitably, they consider various factors, including:
- The length of the marriage
- The value of each spouse’s non-marital property
- The relevant economic circumstances of each spouse at the time the property division would become effective
- The age, health, station, occupation, amount and sources of income, vocational skills, employment status, and earning capacity of each spouse
- The liabilities and needs of each spouse
- The contribution of each spouse to acquiring the property, including contributions as a homemaker
- Child custody arrangements, including the desirability of awarding the family home or the right to live there with the spouse having primary custody of the children
- Any dissipation in the value of marital property
- Any prior financial obligations arising out of a previous marriage of either spouse
- Any prenuptial or postnuptial agreement
- The reasonable opportunity for either spouse to earn income or acquire additional assets
- The tax consequences of the property division
You can contact our firm today to speak to a our family law attorney for advice pertaining to your particular situation.
Process of Dividing Property During Divorce
Dividing property during divorce often involves a complex legal process, which may include the following steps:
Divorce Petition
One spouse files an official complaint for divorce. This often includes a request for an equitable property split and other relief, such as child custody.
Discovery and Asset Disclosure
During the divorce process, each spouse must disclose information about their assets, debts, and incomes. They also exchange financial documents such as tax returns, pay stubs, and bank statements. During discovery, the spouses may employ financial expert witnesses to help determine the value of certain property.
Negotiations
Illinois courts strongly encourage spouses to reach an agreement regarding their marital property to avoid costly and time-consuming litigation. The parties may be able to negotiate a settlement through their divorce attorneys. They can also choose to participate in mediation, a process in which a neutral third party helps identify common interests and encourages the parties to reach a settlement tailored to their particular situation.
Filing a Proposed Settlement
If the parties reach a settlement agreement, they file the proposed agreement with the court. If they do not reach an agreement, each spouse files a proposal for property division with the court.
Pre-Trial Conference
During pre-trial conferences, the parties’ lawyers identify any outstanding issues. The judge may further encourage the spouses to resolve these issues via settlement.
Trial
If the spouses are unable to resolve their case through negotiations or mediation, their case proceeds to trial. During the trial, their divorce lawyers present their legal arguments.
Final Judgment
The judge issues a final judgment regarding all disputed legal issues, including property division, child custody, and spousal support. The final judgment dictates the division of property between spouses.
While the court encourages settlements to avoid litigation, trials can help resolve issues when spouses are unable to reach an agreement. At every stage of your case, a property division attorney can help fight for a fair and equitable resolution of your case. Our attorneys can guide you through the property division process, ensuring you have quality legal representation at each phase of your case.
Enforcing Property Division Orders
Property division court orders are legally binding. If your spouse does not follow the terms of the court’s order, you can seek to enforce the order. The court can impose sanctions for your spouse’s intentional noncompliance.
Modifying Property Division Orders
Property division orders are often final, meaning that they are not subject to modification as easily as other types of family court orders, such as those for child or spousal support. However, there are limited circumstances in which property division orders can be modified, such as if there was a non-disclosure of assets or fraud. A divorce attorney can review your circumstances and explain if modification may be possible.
Types of Property That Are Involved During Divorce Property Division
Property in family law and divorce cases may involve various types of property, including:
- Real property – Real property refers to a residential property or land. This could include the marital home, vacation properties, and investment properties.
- Personal property – Marital property can also include tangible items such as vehicles, furniture, jewelry, and collections.
- Financial assets – Marital property can include various types of financial accounts, including checking, savings, and investment accounts.
- Retirement accounts – Retirement accounts and pensions may be considered marital property subject to division. They could contain contributions made before the marriage, which are a form of separate property.
- Business interests – Marital property can include family businesses and business interests.
- Intellectual property – Intellectual property can include copyrights, trademarks, websites, product designs, and patents.
The property division process also divides marital debts. This process can be complex, so it’s crucial to have our dedicated divorce attorneys on your side who can help you navigate this process and protect your financial interests.
Complex Legal Issues Involved in Property Division
Some cases – including high net-worth divorce cases – can involve complex legal issues, such as:
Prenuptial Agreements
Individuals contemplating marriage can enter into prenuptial agreements that dictate the terms of property division and avoid the state’s default laws in the event of divorce. For a prenuptial agreement to be valid, both spouses must fully disclose their assets and enter voluntarily into the agreement.
Asset Valuation
Valuable assets may require professional appraisals so that the spouses can reach fair agreements regarding their division. Professional appraisals may be necessary for real estate, as well as businesses, vehicles, collectibles, and illiquid assets.
Dissipation of Assets
Some cases involve a spouse lowering the value of the marital estate. If the court determines that a spouse has improperly spent, wasted, or transferred marital property before it was divided, it can compensate the other spouse.
Commingling of Assets
Some divorce cases may involve commingled marital and non-marital property, which occurs when a non-marital asset is mixed together with marital assets. For example, a spouse may have a separate bank account before the marriage and then add a spouse to it during the marriage. If the separate property loses its identity, it can be transmuted to the marital estate and become marital property subject to division during divorce.
Tax Implications
Selling marital property, such as real property or investments may cause tax implications, such as incurring capital gains taxes. Likewise, dividing property, such as retirement accounts, can also have tax consequences, such as triggering early withdrawal penalties and taxes if the transaction is not properly structured. A trusted attorney can discuss and minimize these tax consequences. You can also meet with a tax advisor to better understand your options.
How Long Do I Have to Be Married to Get Half of Everything?
Some states have presumptive laws regarding marital property division based on the length of their marriage. Illinois is not one of them. Spouses are not awarded a certain percentage of the marital estate based on the length of their marriage. Instead, courts consider factors such as the needs and incomes of spouses when making these decisions. While the court considers the length of the marriage, this is only one factor that can affect property division.
Contact Us for a Confidential Case Review
If you would like to discuss your divorce case, contact STG Divorce Law today to schedule a confidential consultation.