How to Handle Property Division in a Contested Divorce

 Posted on January 29, 2026 in Asset Division

Deciding who keeps what is often one of the hardest parts of a divorce. If you and your soon-to-be ex disagree about how to split up your shared property, it is important to know how Illinois law addresses the division of assets during a divorce. At A. Traub & Associates, our Arlington Heights, IL divorce lawyers have over 100 years of combined legal experience, and we can guide you through the most difficult parts of asset division.

The Difference Between Marital and Separate Property (And Why it Matters)

In Illinois, asset division usually starts with making the distinction between marital and separate property. Marital property is generally anything you or your spouse obtained during the marriage. It doesn’t matter whose name is on the title or who made the purchase. If it was earned, bought, or built while you were married, it may be treated as marital, with some exceptions.

Separate property is usually what you owned before the marriage. It can also include certain gifts and inheritances that were meant for only one spouse. That said, separate property can get messy. If you mix it with marital money, it might lose its "separate" label. For example, using marital income to pay the mortgage on a house you owned before marriage can raise questions. Putting an inheritance into a joint bank account can do the same. The court may look at what happened and decide how to divide it.

This difference matters because Illinois does not automatically split everything 50/50. Instead, the court strives for a fair outcome. Knowing what is marital versus separate helps set realistic expectations, and it can keep you from giving up something you may not have to share. For more complex assets like retirement accounts or businesses, a professional valuation may be needed to determine how much of the asset is marital.

Three Ways to Handle Property Division in Your 2026 Divorce

Negotiated Settlement Agreements

Illinois courts encourage divorcing spouses to negotiate an agreement regarding the division of their property and debts if possible. If you and your spouse disagree about who should keep the marital home, how to address valuables such as jewelry or fine art, whether to sell your vacation home, or any other aspect of the property division process, consider working with a divorce attorney.

When both spouses are willing to compromise, these issues can usually be resolved more quickly and with less conflict. If you already have a prenuptial or postnuptial agreement, that document may guide your settlement discussions. A well-drafted agreement can set clear rules about what is marital property and what is separate, and how certain assets will be divided. That being said, there may still be room to negotiate details or address items that the prenup or postnup did not cover.

This approach is often the most cost-effective way to handle property division. However, it requires cooperation between you and your spouse. Handling communication through each other’s attorneys can keep negotiations from boiling over.

Mediation

Mediation can be a practical way to handle property division without arguing for months in court. Through mediation, you and your spouse sit down with a neutral third person, called a mediator. The mediator does not pick a side. Instead, the mediator helps you talk through the issues, find common ground, and work toward a deal you can both live with.

Property division is often a good fit for mediation because many decisions come down to trade-offs. Maybe one spouse wants to keep the house, while the other wants more retirement funds. Maybe you both want to avoid selling a business. Mediation lets you explore options that a judge might not have time to craft in a courtroom.

Mediation can also help you organize the details. You can walk through bank accounts, vehicles, debts, and personal property step by step. That structure can lower stress and reduce surprises. If you reach an agreement, the terms can be put into your divorce paperwork. For many couples, mediation is a calmer path to a divorce settlement.

Divorce Discovery and Litigation

If you and your spouse can’t reach an agreement with help from your attorneys or through mediation, the next step is litigation. Each spouse’s attorney will gather financial documents and other information related to the case. They may use depositions, interrogatories, requests for admission, or subpoenas to gather the necessary documentation and financial data.

There is still an opportunity for the parties to reach a settlement during litigation. In fact, in the vast majority of contested divorce cases, the spouses are able to reach a settlement before the case advances to trial. However, a trial may be warranted in cases where one party is likely to sabotage negotiations, or if there is a significant power imbalance between spouses.

If the case is not resolved before the trial date, a judge will consider information and evidence from both sides and then issue a ruling based on Illinois law. The Illinois Marriage and Dissolution Act lays out many factors that are considered during asset division, such as:

• Each spouse’s contribution to the acquisition of property

• Non-financial contributions made to the marriage or household

• Any dissipation of assets or financial fraud

• The value of the nonmarital and marital property assigned to each spouse

• The duration of the marriage

• Child custody provisions

• Each spouse’s ability to earn income in the future

• Tax-related factors

Illinois doesn’t factor in misconduct when dividing marital property. This means acts like adultery and abandonment won’t impact how much you or your spouse get from the marital estate. Our firm can help you make an argument for an equitable split of the marital estate, keeping your present and future needs in mind.

Contact an Arlington Heights, IL Family Law Attorney

If you are planning to divorce, you need a lawyer who understands the complexities of your individual situation. Reach out to our skilled team of Arlington Heights, IL property division lawyers to discuss your needs. Call our offices at 630-426-0196 to set up an initial consultation today.