During a divorce, couples frequently clash over the division of property. In many cases, each spouse believes they contributed to all of the assets and should receive equal benefits from them. Each state determines how assets should be divided in a state, and Illinois operates under equitable distribution principles.
Community property vs. equitable distribution
Nine states in the U.S. operate under community property division. In these states, any asset purchased during the marriage belongs to both parties and should be divided equally among the spouses. In equitable distribution states, courts focus on a fair distribution of assets. Equitable distribution rarely allots 50% of the assets to both parties.
Asset division factors
Since the Illinois divorce courts will strive towards dividing assets fairly, they consider several factors to determine what each spouse receives. These factors include:
• Any existing prenuptial agreements
• Duration of marriage
• Ages and health of spouses
• Each spouse’s debts
• Each spouse’s financial standing
• Potential of each spouse to acquire income
• Individual contributions to obtaining the assets
• Child custody agreements
• Tax considerations for the assets
Separate property in Illinois
In some cases, you or your spouse may argue that an asset does not belong to both of you. In these cases, the courts may consider it as “separate property,” that should not be included in the equitable distribution. Examples of assets that commonly count as separate property in Illinois courts include:
• Items given as a gift or legacy to one spouse
• Property acquired after legal separation
• Money or property stated to be excluded in a prenuptial agreement
• Assets obtained prior to the marriage by only one spouse
Going to court
Some divorcing couples remain civil and are able to handle property division with mediators. Often, however, the division of assets becomes too contentious, and courts will have to intervene to divide them fairly.