There are two ways in which states divide marital property in a divorce: community property method and the equitable division method. The less common method is the community property method where all marital property is divided 50/50. The majority of states including Illinois take various factors into account to divide marital property equitably or fairly, not necessarily equal after considering various factors.
Factors Considered in the Equitable Division of Marital Property in Illinois
Every divorce case is unique and the court will consider various factors when dividing marital property in an Illinois divorce:
Length of the marriage with longer marriages tending toward a more equal division of marital property. Say, for example, a couple is married and the higher earning spouse purchases a home and all the trappings for the family. A year later, the couple files for divorce. When trying to strike an equitable division, a court may look at the duration of the marriage and decide that the spouse who purchased the home at the outset of the marriage is entitled to a greater share of the assets despite the fact the how was purchased after the couple married.
Monetary and property contributions of each spouse to the marriage. It may be that one spouse has contributed a home or significant savings to the marriage only to see it the marriage fall apart early on. Equitable division will take into account the monetary and property contributions balanced against a host of other factors such as the duration of the marriage, the income and earning capacity of each spouse, the non-monetary contributions of the other spouse and more.
Non-monetary contributions of each spouse such as raising children or sweat labor in a small business or the maintenance of a family home. It is not uncommon for one spouse to be the bread winner while the other spouse takes on the responsibility for homemaking, which may include raising the family’s children – no small feat. If one spouse owns a small business, it is also not uncommon for a non-owner spouse to pitch in regularly to make the business profitable for the benefit of the family. The court will look at non-monetary contributions to ensure the equitable division of property.
How parenting time and parental responsibility are shared. If one parent is taking on the responsibility for raising a child, a court may award certain assets such as the marital home to the parent who has the bulk of the parenting time and parental responsibility.
Income and earning potential of each spouse. Sometimes one spouse has advanced their career during the marriage while the other has stayed home with children. It may be that one spouse works in an industry with less economic opportunity, while the other earns substantial financial compensation based simply because of the industry in which they are employed. An equitable divisor of property might reflect the disparity in income or earning potential, awarding the spouse with less economic opportunity more of the marital pie or perhaps awarding temporary spousal maintenance so a lesser earning spouse can obtain education or training needed to be financially independent.
Age and health of each spouse. The ability to bounce back financially from a divorce is certainly impacted by health and age and both are factors when considering the equitable division of marital property.
Other support obligations to children or ex-spouses from a previous relationship. It is very important that a parent continues to support children from a previous marriage so these obligations are factored into a comprehensive divorce settlement agreement.
Whether there is a pre or post nuptial agreement. A pre or post nuptial agreement can specifically dictate who gets what property in a divorce as long as the agreement was entered into legally. There are instances where a prenuptial agreement is too lopsided to be fair, that one party was coerced into signing, or other issues that make the agreement void.
The value of each spouse’s separate property. Property that was purchased before the marriage and gifts and inheritance given to only one spouse may be considered separate property if there was no co-mingling of these assets during the marriage. If one spouse has separate property of a home and a considerable cash inheritance sitting in the bank while the other spouse is destitute when trying to equitably divide assets in a divorce, a court may award more of the marital assets to a spouse without any means to rely on.
Every situation is unique and it is very important to work with an experienced marital property division lawyer to ensure you get a favorable outcome in your divorce. Contact the Libertyville family law office of Ronald L. Bell & Associates PC for immediate assistance today.