Property division 101: Deciding who gets what in a divorce settlement

People filing for divorce in Illinois follow an equitable division of property law, which considers all factors of a divorce before dividing marital property.

Some couples who file for divorce in Illinois are able to divide their marital property themselves through mediation. There are other couples, however, who need legal assistance when negotiating the terms of their property division. It is often a mistake to try to divide property without legal advice as the consequences may be irreversible thirty days after the Judgment is entered. For instance, failure to divide a pension or investment correctly may result in one spouse receiving the whole benefit, not just one-half the marital share. Distributing all of the property and assets that a couple has acquired throughout their years of marriage may be difficult and is often overwhelming to those who are unfamiliar with divorce proceedings. People who have a full understanding of how the property division process works may be able to simplify the process and ensure that they receive everything they are entitled to in the divorce settlement.

What is equitable division of property?

In a case involving equitable division of property, the judge who is presiding over the case will split the marital property and assets in an equitable and fair manner. In order to do this, the judge can use his or her discretion according to the unique circumstances of the case. Illinois is one of the many states that follows this model of dividing property, as opposed to the community property model which divides all marital property evenly in half.

Looking at the factors

Not all divorce cases are the same. It is important that the court-appointed judge considers all aspects of the marriage and divorce when distributing the property. According to Illinois statutes, these factors include the following:

• Which parent has primary parenting time with the kids if there are any children involved in the divorce

• The health, age, job and education of each spouse

• How long the couple was married

• Whether there was a prenuptial agreement involved

The judge may also consider whether one spouse put his or her education and/or career on hold in order to further the education and/or career of the other spouse.

Non-marital vs. marital property

Not all property and assets amassed during a marriage are eligible for division in a divorce case. Non-marital items include property that is included in a prenuptial agreement, property that someone owns prior to the marriage, inheritance or gifts given to either party by a third person. In some cases, non-marital property can transition into marital property when it is combined with the other spouse's property and/or assets. For example, money given as a gift to one spouse may stay separate if the spouse leaves it solely in his or her name and does not combine it with other marital funds.

Getting through the divorce process

The challenges of going through the divorce process in Illinois are numerous. It may be helpful to seek assistance from a family law attorney who has experience handling these types of cases. Not only do lawyers often help to simplify the divorce process, but they may be able to help ensure your rights are being upheld in court.