IllinoisPost Divorce Property Division
Illinois Property Division Guide :: Table of Contents
What is property division in a Illinois divorce?
Also known as equitable distribution, property division is the process of dividing property rights and obligations between spouses during the process of a divorce. Property division may be agreed upon between the soupses through a property settlement, or it may be decided in court during the judicial process of divorce. The process of property division is affected by state laws such as community property laws, definitions of marital contributions, etc.
Illinois is an equitable distribution state, and only property acquired during the course of the marriage is subject to division following divorce. Some factors considered by Illinois courts in a property division case include non-monetary contributions, contributions to a partner's education, economic misconduct and a list of other factors defined in Illinois law. This page summarizes the most important aspects of property division laws in Illinois.
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Illinois divides marital assets via equitable distribution, which means that the court attempts to divide marital assets in a fair and equitable manner between the spouses, taking multiple factors into account in order to determine the equitable distribution for each spouse.
How is Property Distributed?Under Illinois law, marital property is that which is acquired or is a direct result of the labor and investments of the parties during the marriage is subject to equitable division. Equitable division does not mean marital property is divided equally, it is divided in manner that results in a fair or equitable result for each spouse.
Courts will consider the following factors when dividing property: the contribution to the marital assets of each party including contributions to the care and education of the children and services as homemaker; the economic circumstances of the parties; the length of marriage; any interruption of personal careers or educational opportunities or contribution of either party; the contribution by each party to marital and non marital assets; the desirability of retaining the marital home as a residence for any dependent child of the marriage and whether it is in the best interests to do so; and intentional waste or dissipation of marital assets prior to the filing of the petition.
Alternatively, non-marital property or property defined as property acquired by one spouse prior to the marriage or property acquired by on spouse which was not intended to be part of the marital estate is not subject to equitable division.
Illinois Property Division FAQ
- Is Illinois a community property state?
- Does state of Illinois only divide marital property after a divorce?
- Is there a set list of statutory factors for determining property division in the state of Illinois?
- Do courts in the state of Illinois consider nonmonetary contributions?
- Does Illinois consider a spouse's economic misconduct in property division?
- Are contributions to education considered in the state of Illinois?
- Can a pre-nuptual agreement affect property division in Illinois?
- How can I enforce a property division order in Illinois?
- Dower and Curtesy in Illinois?
Is Illinois a community property state?
Illinois is NOT a community property state, which means that marital property is not automatically divided 50/50 between the spouses in a divorce case.
Instead, Illinois judges determine property division under the equitable distribution policy, which means that the court divides property between the spouses in what is believed to be a fair distribution, based on each individual's contributions to the marriage and their earning ability and needs following separation. Factors such as one spouse's economic misconduct may also be considered.
In practice, judges in an equitable-distribution state like Illinois often divide marital property with approximately 2/3 of marital assets going to the higher-earning spouse, and 1/3 going to the lower-earning spouse.
Does state of Illinois only divide marital property after a divorce?
In the state of Illinois, only property or assets considered "marital property" or "community property" are subject to division in a divorce case. This means that property owned by either spouse prior to marriage is exempt, as are certain individually-owned assets acquired during the tenure of the marriage.
Some individual property may be considered to be "partial community property" or even ruled to be fully community property due to contributions by the other spouse or co-mingling of assets, which may lead to complicated property division situations.
Is there a set list of statutory factors for determining property division in the state of Illinois?
Illinois has a list of factors set by statute that specify what the court will use to determine a fair property division. Examples of factors that are often taken into consideration during property division cases include:
- Marital Fault - In states that allow at-fault divorces, the fault of one spouse may be used by the judge to justify a higher percentage to the injured spouse.
- Economic Misconduct - In Illinois, spouses who wastefully or fraudulently spent marital assets may receive a lower percentage of the marital property.
- Income and Earning Capacity - The court may consider the relative incomes and earning capacity of each spouse, which may be affected by factors such as age, education, and health. The spouse with lower economic prospects may receive a larger percentage of the estate.
- Educational Contributions - In Illinois, spouses who contributed significantly to their partner's education or earning capacity may receive a percentage of the marital property.
- Custody of Children - If one spouse has full custody of the couple's children following the breakup, this may result in higher likelihood of receiving a higher percentage of the estate, or certain pieces of marital property (like the family house).
Do courts in the state of Illinois consider nonmonetary contributions?
In Illinois, statutory law requires judges deciding a property division case to account for the nonmonetary contributions of both spouses to a marriage when determining how to divide property between them. In practice, this generally means that the judge will consider the value of the labor a stay-at-home spouse contributed to the marriage. Nonmonetary contributions may include activities like the following:
- Household chores, cooking, homemaking
- Taking care of children
- Supporting their spouse professionally
Does Illinois consider a spouse's economic misconduct in property division?
Illinois law allows courts to consider economic misconduct of a spouse as a factor in determining equitable property division. Economic misconduct generally means dissipation of assets, which is the legal term for the wasting or loss of marital funds or assets by a spouse through means like excessive spending, gambling, fraud, etc.
If a spouse is found to have dissipated marital funds in a way that injured the other spouse, the court may take punitive or restorative action by awarding a higher percentage of divided property to the injured spouse.
Are a spouse's contributions to their partner's education considered in the state of Illinois?
Illinois statute does provide for court consideration of a spouse's contribution to their partner's education during the course of a marriage. If one spouse supported (financially or otherwise) the other and enabled them to obtain education or other training that increased their earning power, these contributions can be considered by a Illinois judge when determining how to divide marital property.
Can a pre-nuptual agreement affect property division in Illinois?
A prenuptual agreement, or pre-nup, is a binding legal contract signed by both spouses prior to getting married in Illinois. A prenup containing a property division agreement can take precedence over Illinois' property division laws by establishing what is considered as separate vs marital property, as well as agreeing on how finances will be structured during the marriage and divided in the event of a divorce.
The existance of a valid prenuptual agreement can prevent a Illinois court from having full reign to determine how assets are divided between the spouses, and instead allow them to be divided in a way agreed to by both spouses prior to the event.
How can I enforce a property division order in Illinois?
A Illinois property division order is a court order issued by a court order issued by a judge, describing how property is to be divided between spouses following a divorce. A property division order is a binding legal obligation, and failure to comply with the terms in full by either spouse can result in being charged with contempt of court. If your spouse is not complying with a property division order, you can consult a family lawyer to discuss potential legal avenues.
Dower and Curtesy?
Dower and curtesy abolished as of 1/1/72 (755 ILCS 5/ 2-9)