How Is Marital Property Divided In Illinois Divorce?
Getting a divorce means going through many complicated legal matters. Figuring out how you and your partner will separate finances can take time and effort. For example, dividing marital property fairly is often challenging.
Learn below about how marital property is divided in Illinois. Have a question? Talk to our divorce lawyers in Schaumburg at the Law Office of Fedor Kozlov.
Illinois Is Not A Community Property State
Illinois is an ‘equitable division’ state, not a community property state. Marital property is not divided 50/50. State law provides that the property is divided equitably. Many Schaumburg divorce cases are settled with a 70/30 or 60/40 asset split. Even a few divorces end with all marital property going to one spouse. Many factors, highlighted below guide the court process for dividing assets.
Marital Property Rights In Illinois
So, you want to understand how marital property is divided in Illinois. First, you should understand the kinds of property that need to be divided. Your and your partner’s assets are either marital or non-marital.
Marital property means all the assets and debts obtained during the union. Non-marital property refers to assets that you owned before the marriage. This also means assets that you gained after you were legally separated. In Illinois, assets you get through inheritance or gifts are usually non-marital assets. If you have a prenuptial agreement, it is used to identify the assets deemed non-marital property you owned before marriage.
You and your partner are entitled to the equitable distribution of marital property. Illinois law does not require you to divide assets and debts 50/50, but each of you is entitled to a ‘fair and equitable’ share of the marital property.
Note: No matter who bought or acquired property or whose partner made most of the income to buy the property, all marital property is considered jointly owned. Each partner deserves a fair share of marital property whether they made most of the income or provided for the home in other ways.
What Factors Are Considered During Division Of Marital Assets?
Some partners can agree on how to divide their property. But when the couple cannot agree, divorce lawyers in Schaumburg may be needed to resolve the issues. They will ask a family court judge to make critical decisions on how the assets will be divided. If you understand what the judge considers in these complex cases, you will understand how to divide your property fairly.
According to Illinois state law, marital property must be divided in just proportions. So, as the judge thinks about how to divide the property, they will consider:
You and your partner may have provided finances to acquire property and earn income. However, the judge can look at other contributions, including managing family money and doing things in the house that preserve its value.
Property can be divided that fairly addresses each person’s income and other resources you have. For instance, if your husband has a higher income, the other person may get more marital assets. This could be instead of receiving alimony.
When deciding these matters, it is also relevant to consider your age, work history, employment, health, and debts. How will these affect your circumstances in the future? These critical decisions should be based on your ability to earn income in the future.
Decisions Affecting The Child
If you and your partner have children, decisions about child custody could also affect how property is divided. For example, the parent with primary custody could receive more assets to ensure they can support the kids properly.
Also, you may need to decide if the parent with primary custody will keep home ownership. Whether the home is near Wintrust Field, The Sculpture Park, or elsewhere in Schaumburg, it is essential to ensure your children are not removed from the community and home in the middle of a divorce.
Before 1993, Illinois state law said the court could only provide alimony if property division did not provide financial equity for the partners. The law has changed. Today, the court can award alimony instead of or in addition to property division.
Illinois law does not state it explicitly, but this factor includes each partner’s value of non-marital and marital property. Therefore, if one partner has a lot of non-marital assets, the judge may award more of the marital property to the other spouse.
Also, the spouse with more non-marital assets may receive more debt from the marriage. However, there is no formula to follow here. It is essential to talk to a Schaumburg divorce attorney for more information.
Length Of The Marriage
The next factor is how long the marriage lasted. In a long marriage, this factor could be a multiplier for what the homemaker contributed to the marriage. A short marriage can prevent a gold-digger from marrying a wealthy person and divorcing them quickly to enjoy a financial windfall.
You should ensure that decisions made about property division do not negatively affect your taxes. For instance, if you opt to sell your house during the divorce, capital gains taxes could be an issue. Therefore, you should talk with your Schaumburg divorce attorney about how selling significant assets during the divorce could affect your taxes.
What Happens If The Court Can’t Decide?
The divorce court cannot determine if your property is marital or non-marital. The law does not have a provision for ‘semi-marital property. Therefore, the court has to decide if the asset is marital or non-marital. If the court cannot determine this, the divorce court will assume the property is marital.
Marital Property Division Mistakes
Now you have a thorough understanding of marital property division during Illinois divorces. Next, you should avoid making the following mistakes during an Illinois divorce that affect marital and non-marital property.
First, you should take your time with the process of making marital property decisions. It is understandable to want to get through the divorce pain quickly and come out the other side. However, haste in the divorce process may mean making unwise decisions regarding property division.
It is vital to take time with your attorney to collect property information, so you know what needs to be divided during the divorce. In a rush, you could forget about important marital property. In addition, a hasty divorce settlement could result in your ex-spouse receiving an unfair share of the marital wealth.
Second, you should be wary of a do-it-yourself divorce. It also is understandable to want to avoid the cost of a divorce lawyer. But even when the divorce is uncontested, you could forget about important property issues. You should talk to your Illinois divorce attorney about the case. You may also consider a mediator to ensure that you cover all marital property matters during the divorce. Remember, once the divorce is final, nothing can be changed.
Third, it is common for divorcing couples to undervalue critical assets. This is especially problematic when there is a family business involved. An asset worth this much requires the help of a divorce attorney and financial advisor to value the asset appropriately. Only then can you obtain your fair share of the business. You should not assume that you are not entitled to a fair and equitable share because your name is not on the property title.
Fourth, some spouses may hide assets during a divorce. This is one of the most common divorce property division mistakes. Hidden assets could involve overseas bank accounts, trusts, and even transferring assets to friends and family. Finally, some people may hide assets in cryptocurrency accounts. Fortunately, your attorney and a forensic accountant can usually uncover any hidden assets.
Fifth, you should always remember to fairly and equitably divide retirement accounts. For example, you may be unaware that your spouse has hundreds of thousands of dollars in their IRA or 401k. Unfortunately, some spouses think that because it as a separate account only in the spouse’s name, they are not entitled to their fair share.
Sixth, beware of mischaracterizing non-marital property as marital property. If you owned assets before the marriage, these assets are not usually subject to fair and equitable distribution. However, many divorced partners mischaracterize their assets as marital property. If this happens and you lose some of your assets in a divorce, it can be difficult to untangle the mess after the divorce is final.
Many spouses must prioritize which assets are most important to them. You will need to compromise. What is your priority? What are your goals for alimony or child support?
Contact Divorce Lawyers In Schaumburg
If you are getting a divorce in Schaumburg, it is critical to resolve property-related disputes fairly to both sides. The attorneys at the Law Office of Fedor Kozlov can provide the legal expertise you need to deal with marital property disputes. Contact one of our attorneys today at (847) 241-1299. Our attorneys also serve clients in Arlington Heights, Rolling Meadows, Hoffman Estates, and Palatine.