Equitable Distribution In Divorce In Illinois
The Illinois Marriage and Dissolution of Marriage Act require all marital property obtained during the course of the marriage should be divided between the partners.
To understand how the court determines the equitable distribution of property, you should understand the difference between marital and separate assets.
Marital Assets
Marital property refers to assets that have been acquired after marriage. The asset does not include properties acquired before the marriage. Moreover, it does not include assets that have been obtained through gifts, descent, bequest, and through a written agreement.
Marital assets are assets that have been acquired between the period when the partners were wedded and when they filed for a divorce. In other words, all properties after marriage till divorce are presumptively considered marital assets according to Illinois divorce laws.
A spouse who claims that a property is not marital property must provide a claim. For instance, a person who sold the house bought before marriage to invest in stocks must prove that the proceeds of the sales of the house acquired pre-marriage were invested in securities after marriage.
Separate Assets
Separate assets in the context of divorce laws in Illinois refer to all assets bought before the marriage. Separate assets also include assets that were acquired at the time of the marriage through gifts or inheritance. If a partner receives an asset from a third party, the asset is considered separate assets as per the law. Compensation for personal injuries is also considered separate properties.
Illinois courts do not distribute separate assets to the partners. The separate assets will remain part of the partner who had acquired the assets before marriage.
The concepts of marital and separate properties are simple. However, differentiating between marital and separate properties is not always straightforward. Assets can lose their identity over time as they get comingled after marriage due to which the status may change from separate to marital property. For instance, suppose a partner receives some money through inheritance. In case the partner uses the funds to buy shared assets, the funds can get transmuted from separate property to marital property.
You should know that equitable distribution does not mean equal distribution. In case one partner has more separate property as compared to the other, the court may allocate more marital property to the spouse with little assets to ensure equitable distribution.
Factors Illinois Courts Consider in Division of Property in Divorce
The Illinois courts assess both the marital and separate properties of the divorced couples. However, only the marital property assets will be allocated to the divorced individuals. Various factors are considered to determine how the assets will be distributed among the partners after a divorce. Some of the factors that the court considers in the division of properties between divorced couples include:
Age, Health, and Employability of Each Partner
The court will consider objective factors such as the age of the partners. Moreover, the health of the partners is also assessed to ensure equitable distribution of assets. As an example, if one partner has poor health, the court may be inclined to favor the partner more in dividing the property.
In addition, the present and future earning capacity are assessed in the distribution of the assets.
Contribution of Each Partner
The contribution of the partners to the marriage will also be considered during divorce proceedings. If a partner was a homemaker, the value of the contribution will be assessed to ensure equitable distribution of assets.
The presiding judge will consider the contribution of each partner in child-rearing and homemaking, investments, and business interests. The duration of the marriage will have an impact on the equitable contribution of the asset. The longer the partners have been in a marriage, the higher will be the contribution of the partner.
Pre- or Post-nuptial Agreement
Pre- or post-nuptial agreements between the partners are also considered during the division of marital property.
An important point to understand is that the prenuptial agreement must be valid. Certain factors can invalidate the agreement, such as the contract signed under duress or lack of understanding about the terms of the agreement.
A prenuptial agreement to be valid must be signed by both partners. Oral agreements are not acceptable in Illinois. You should contact an experienced divorce lawyer to find out what factors can invalidate the prenuptial agreement.
Pension Benefits
Pension benefits that have been accrued during the marriage are considered in ensuring equitable distribution in Illinois. Funds that are contributed to the pension account when the partners are married are considered marital property. The 401k account is subject to division similar to other marital properties unless there is a prenuptial agreement between the partners.
Funds that are contributed to the pension account before the marriage will not get distributed. For instance, suppose a person had contributed $20,000 before marriage and $50,000 after marriage. In this situation, only $50,000 in the pension account will be distributed.
Generally, the withdrawal of money in the retirement account before the age of 59 ½ is subject to a 10 percent penalty fee. But the fee is not imposed when the amount from the pension account is transferred to the spouse.
The court can divide the pension amount using two methods. One method to transfer the pension amount is through the Qualified Domestic Relations Order (QDRO).
QDRO is a type of court order that requires the administrator of the pension plan to assign an amount from the pension account of the partner. The amount must be transferred to the account of the partner after the finalization of the divorce proceedings. No penalty is imposed on the transfer of the pension account as per the directive of the QDRO.
Another method that the court can use to distribute the pension amount is letting the partner keep the entire pension amount but order an offsetting amount to be paid to the partner.
Division of the pension account can be complex in some situations. Sometimes the pension assets are tied to the stock market. The account value will vary depending on the stock market performance. As a result, the language used in the divorce decree should be clear, otherwise, it can create difficulties when dividing the pension assets.
Behavior of Partner
Behaviors of the partners such as adultery, drug abuse, and criminal activities are not considered during the proceedings for equitable distribution in divorce in Illinois. However, a judge will consider the behavior of the partner if it impacts the distribution of the marital property. For instance, if a partner transfers the assets from the marital property or does not disclose the full value of the asset, the judge may impose a penalty by awarding a higher amount of the marital property.
A court may penalize a partner if it is found that the partner had tried to dissipate the value of the marital property. A partner will be penalized whether the partner attempts to reduce the property value during marriage or after divorce.
Equitable Distribution is the Last Resort
Remember that equitable distribution is the last option in states with equitable distribution divorce laws. Partners have the option to reach an agreement regarding the division of property subject to approval from the court.
The partners can come to an agreement by themselves or through their divorce attorneys. The court will intervene and use their direction only if the partners don’t reach an agreement regarding the distribution of properties.
Get Expert Legal Help for Illinois Divorce Laws
Equitable distribution of property is a division of assets in a way that is fair for both partners. The purpose of distribution of properties as per Illinois divorce laws is not to distribute the assets equally. Instead, the divorce laws look at different factors to decide what each of the parties will receive from the marital property.
You should note that equitable distribution laws apply only in court. Couples have a chance to work out how the property should be distributed on their own. They can get more from the marital property due to savings in costly court proceedings. Spouses are free to distribute the property anyway, which seems justifiable to them.
If the partners cannot agree on how to distribute the property, the court will use its discretion to decide the matter. The spouse may also agree to divide a portion of the marital property through negotiation and let the court decide how to divide the remaining amount.
Contact a professional divorce lawyer to know your options regarding the division of marital property.
The Law Office of Fedor Kozlov has been providing expert legal services for disputes regarding family law for years. Our divorce lawyers in Schaumburg, Illinois specialize in family law cases about domestic violence, divorce, spousal maintenance, equitable distribution, tax implications, and child support. We offer highly personalized and responsive legal services to all of our respected clients.