Illinois is an equitable-distribution divorce state. That might sound reassuring, but someone experiencing a divorce should take a closer look. Your results may vary.
If you and your spouse have already amicably agreed on a division of your property, Illinois courts will usually defer to your wishes.
But those are the very issues on which many couples find their sharpest disagreements and they often need the court to make the final calls.
Fairness is in the eye of the beholder
The courts will aim to divide your property “equitably.” That means fairly, not necessarily equally. And if fairness was easy to decide, you probably wouldn’t need the court to decide for you.
Here are a few concepts that will guide the court as it makes its judgments.
Generally, if you brought it into the marriage, you can take it out. Even if you inherited the property from your side of the family during your marriage, it’s usually yours. If that property grew in value during your marriage, that value is also usually yours.
If the cabin you both enjoyed during this marriage was part of your settlement from your first marriage, it’s probably yours. If you sold that first-marriage cabin and used the funds to buy your second-marriage cabin, it might still be yours, especially if the deed is in your name alone.
But the court has significant leeway in pursuing the goal of equity. It can consider question such as:
- Were you married a long time or only briefly?
- Did one of you contribute more to the property’s upkeep or renovation?
- Will one of you simply need the property more than the other after the marriage?
- What makes more sense given any agreements you’ve already come to about child custody?
This same whole-picture approach is likely to apply to most questions, for example, a business co-owned by you and your spouse.
Did one of you contribute more the operation or design of the business? Was one of you able to work on the business only because the other took care of the house and children?
Since goal is fairness, not equality, considerations often extend beyond the interests of the two spouses.
Frequently, the spouse who did the most child-raising will keep the family home, if only because staying in familiar surroundings might be in the children’s interests.