Overview of Property Division
Depending on where you live, your financial circumstances may have a major impact or little impact on property division. Each state often has its own rules for property division in a divorce, although your state will follow one of two approaches—equitable division or community property.
The majority of states, including Illinois, take an equitable division approach to dividing property. In equitable division states, a judge will divide a divorcing couple’s property fairly or equitably. Often this results in an unequal distribution of property. For example, a judge may award a needy spouse the majority of the marital assets to make up for that spouse’s disability or lack of earning potential.
A handful of states follow a community property approach. The following are community property states: Alaska, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. In a community property state, a judge splits marital property equally. Each spouse takes one-half of the marital estate.
What property you keep after your divorce will depend on whether it’s separate or jointly owned marital property. A judge will divide a couple’s marital property, but separate property isn’t subject to division in a divorce. Under Illinois law, separate property includes any of the following:
- property acquired by gift, legacy or inheritance or in exchange for such property
- property owned before the marriage, except for retirement plans
- property acquired by either spouse after a legal separation, and
- property excluded by an agreement between the parties including a prenuptial or postnuptial agreement.
It’s presumed that any property acquired during a couple’s marriage is jointly-owned marital property. Separate property can become marital property if it’s mixed or commingled with marital property. For example, a car owned by one spouse before a couple’s marriage can become marital property if joint funds are used to maintain the car, make car payments or cover insurance premiums.
Preparing Your Divorce for Trial
Early on in your divorce case you’ll have to disclose all your assets and debts through preliminary financial disclosures. Each spouse must submit his or her financial information regardless of whether your divorce goes to trial. This information is essential if you plan to settle your case or attend mediation with your spouse. If you and your spouse aren’t able to agree on property division, you’ll have to litigate your case through trial.
Discovery is part of the litigation process. During divorce discovery, you and your spouse may file interrogatories requesting more information about assets and debts, conduct depositions or request additional documentation from your spouse. You should be prepared to testify about your assets and debts at trial Additionally, you and your spouse might need experts to help define property values in your case. For example, a real estate appraiser can assign a value to your marital home or a business valuator can review company records to determine a reasonable sale price for your family business.
How Will a Judge Divide Property in My Divorce?
A judge will balance each spouse’s needs to create an equitable property award. Some of a factors a judge will consider, include:
- each spouse’s age and health
- each spouse’s employment history, education, job training and earning capacity
- the length of the marriage
- each spouse’s family obligations
- any alimony award
- when property was acquired and how it was treated during the marriage
- either spouse’s reckless spending during marriage, and
- any tax consequences of property division.
For example, a spouse with a disability may receive a larger portion of the property in a divorce. Alternatively, a spouse who wasted marital assets or spent thousands on a lover may receive a smaller share of marital property to make up for the lost assets. A judge’s ultimate goal is fairness when dividing property in Illinois.