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Legal Guidance

Illinois property division: What you should know

| Sep 14, 2020 | divorce |

One of the most difficult topics to negotiate in the final divorce settlement is property division. Taking account of all the property and assets you have accumulated throughout your marriage and determining how to split it fairly may seem almost impossible.

As you navigate the seemingly overwhelming divorce process, it is critical to understand what types of property are eligible for division, as well as how the courts decide who is entitled to what.

What is equitable division of property?

Illinois, like many other states in the nation, follows the equitable division of marital property model. Rather than divide all property and assets equally in half, like community property states, equitable division separates property in a manner deemed fair by the courts, as reported by Illinois courts. The judge presiding over the case may take into account several factors before making a final choice.

According to Illinois state statutes, these factors include the following:

  • Contribution made to the acquisition of the property
  • Any postnuptial or prenuptial agreements
  • Tax consequences of property division
  • Age, education, occupation and health of each party
  • Opportunities each party has to obtain income
  • Any obligations already in place from a previous marriage

The judge may also take into account whether one party stayed home and acted as primary caretaker, while the other attended school or sought a career.

How is non-marital property divided?

Only marital property is divided in the final settlement. Non-marital property, on the other hand, may remain in the hands of the original owner. This includes any property you acquired prior to becoming married, gifts given to you by a third party, personal injury compensation and inheritance money.

In order to remain with the original owner, however, the property must be kept separate from accounts bearing your spouse’s name. If at any time the money is placed in a joint bank account or co-mingled with marital property, it may turn into marital property and become eligible for division in the divorce settlement.

But note that the amount of non-marital property can affect the division of marital property. If, for instance, one party has a sizeable amount of non-marital property that’s a factor to be considered in dividing the marital property.