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Getting divorced means dividing your assets so that each partner can walk away from the marriage and get a fresh start on life. In Illinois, assets are divided equitably, not equally. This means that the courts will divide the assets based on what they feel is fair to both partners based on their financial situation and contributions to the marriage.
Protecting Assets
Once a couple has filed for divorce, the courts will automatically enter a stay on all marital property. This is a court order that prevents either spouse from selling property or otherwise disposing of it without the permission of the other spouse. Thus, real property and physical property must be maintained until the division of assets has been completed. However, cash assets may be used to pay for food, mortgages, rent, and other necessities of life.
Understanding Marital Property
The Illinois Marriage & Dissolution of Marriage Act considers marital property anything that was purchased or acquired during the course of the marriage. These assets can include bank accounts, investment accounts, stocks/bonds, pension/retirement plans, real property, vehicles, furniture, artwork, and businesses or partnership interests.
Exclusions to Marital Property Divisions
Some items are not going to be divided and shared during the divorce. Inheritance of cash assets, valuables, or real property is considered the property of the recipient. Additionally, property acquired prior to the marriage, income from property that was acquired before the marriage, and property that both parties agree to exclude prior to the judgment of legal separation is excluded. Exclusions also include any appreciated value of these assets during the course of the marriage, or any assets that were specifically excluded within a prenuptial agreement.
Dividing Assets Between the Divorcing Parties
The court will consider a number of factors when determining the most equitable method of dividing assets. Since Illinois is a no-fault divorce state, this process will not include any mitigating factors that led to the divorce.
The court will first determine each spouse’s contribution to the marital estate. This includes the purchasing, enhancement, or maintenance of property that has affected the value of said property.
The courts will also consider each partner’s contribution to maintaining the home, including raising children or taking care of family members. Thus, even if a spouse has not received income during the marriage, the court will consider these labors a form of employment for the purposes of dividing assets.
When dividing assets, the court will factor in the economic circumstances of the divorcing parties. If the couple has children, the courts will typically award the family home to the spouse who will have primary parenting responsibilities. The court may award the home on either a permanent, or temporary basis in order to give the custodial parent time to find new living arrangements.
Ultimately, it is the court’s objective to ensure that the division of assets is equitable to both parties. Remember, the court will not punish either spouse for the breakdown of the marriage, rather it will seek to divide the assets in such a manner that both spouse leave the marriage in the best financial position possible.
Reimbursement for Commingled & Contributed Property
It is common for spouses to commingle property such as a primary residence that was owned prior to the marriage, or inheritances that are used to purchase marital property. When this happens it, these assets become marital property. However, the spouse who contributed these initial assets to the marriage is entitled to reimbursement for these assets.
Spouses are also entitled to reimbursement for contributed assets to the marriage such as property repairs to real property assets that were commingled, child rearing, etc. However, in order to collect reimbursement for these, the requesting spouse must be able to show clear evidence of these expenses in order to convince the court to grant their request.
Dividing Debt and Liabilities
Debt such as student loans or business loans will typically become the responsibility of the spouse who acquired these debts. The responsibility for credit card debts, mortgages, and unsecured loans are typically divided equally between the divorcing parties. However, there can be trades and negotiations in regard to all debts. For instance, one spouse can assume responsibility for the mortgage in return for the other spouse assuming responsibility for credit card debt, etc.
Divorcing spouses should endeavor to create as detailed a list of all the cost and value of all property and debts owned prior to, or acquired during the course of the marriage. Divorce attorneys in Illinois will present this to the court so that they can determine the best, and most equitable way to divide these between the divorcing spouses. The more comprehensive and detailed the information to the court, the less likely it will be contested once the final property division has been awarded.
