Division of Property in an Illinois Divorce
When couples decide to divorce in Illinois, one of the critical steps in the process is the division of property. Illinois law follows the principle of "equitable distribution" to ensure a fair division of assets and debts.
Unlike community property states, where assets are divided 50/50, equitable distribution looks at several factors to achieve fairness, not necessarily equality.
Marital vs. Separate Property
Marital Property: This includes most assets and debts acquired by either spouse during the marriage, regardless of whose name is on the title. Common examples include homes, vehicles, bank accounts, and retirement plans.
Separate Property: Assets acquired before the marriage, as well as gifts and inheritances received by one spouse during the marriage, are typically considered separate property. Separate property also includes items protected by a valid prenuptial agreement.
Factors Considered in Equitable Distribution
The courts in Illinois consider various factors when dividing marital property, including:
- Duration of the Marriage: Longer marriages may see a more equitable division of assets.
- Contribution to the Acquisition of Property: This includes both financial contributions and non-financial contributions, such as homemaking and raising children.
- Economic Circumstances of Each Spouse: The court examines each spouse's financial situation, including their earning capacity and future prospects.
- Custodial Provisions for Children: The needs of children and custodial arrangements can influence the division of the family home and other assets.
- Age, Health, and Occupation of Each Spouse: These personal factors are considered to ensure that the division of property does not disproportionately disadvantage one spouse.
- Any Agreement Between the Spouses: Prenuptial agreements or other settlements agreed upon by the spouses can dictate the division of assets.
Division Process
The division process in Illinois involves several steps:
- Identification of Assets: Determining which assets are marital and which are separate.
- Valuation of Assets: Assessing the value of marital assets to ensure an equitable division.
- Distribution: The court divides the assets in a manner that it deems fair, considering the factors mentioned above.
Special Considerations
- Retirement Accounts and Pensions: Like other marital assets, retirement accounts and pensions are subject to equitable distribution. The portion accumulated during the marriage is considered marital property.
- Real Estate: The marital home and other real estate properties are significant assets that require careful consideration. The court may decide to award the home to one spouse, especially if children are involved, or order the property sold and the proceeds divided.
- Debts: Marital debts are divided similarly to assets. The court looks at who incurred the debt and why, along with each spouse's ability to pay.
Equitable distribution in Illinois aims to ensure a fair outcome for both parties in a divorce. Given the complexity of property division, consulting with a legal professional is advisable to navigate the process effectively and protect your interests.
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