If you are contemplating or currently going through a divorce in Illinois, you probably have a whole team of friends and family willing to help get you through tough times. Unfortunately, when this assistance comes in the form of legal advice on property division in divorce, misconceptions abound. You may hear that a “friend of a friend” recently got everything in a dissolution of marriage case, while someone else might relate how their cousin lost it all. It can be difficult to separate valid, credible details from conjecture.

One of your first priorities, when confounded by misconceptions, is to reach out to a Lombard property division attorney right away. Bad information can have a profound impact on your rights in a divorce case, and you put your interests at risk by attempting to address the complicated legal issues on your own. Still, it may help to debunk some of the myths about property division that do more harm than good.

Myth 1: Marital property is split equally between divorcing couples.

Illinois follows the law of equitable distribution when dividing assets acquired during the marriage, with the language of the property division statute requiring the court to divide items “in just proportions.” As such, the principles of equity and fairness apply when distributing assets, so the split may not be exactly 50-50.

The decision to get a divorce affects your entire family, especially any children that you and your spouse share. Throughout the divorce process, you will need to resolve important issues related to your children, including child support, parenting time, and the allocation of parental responsibilities. However, your children may factor into other important decisions as well, such as the division of marital assets. As you decide on the properties that will remain with each spouse, you should consider how certain properties may help you be a better parent and help your kids adjust to the changes that divorce brings.

Marital Properties That May Affect Your Children

In general, a fair distribution of assets is important so that both parents can continue to financially provide for their children as best as possible. However, certain tangible or physical properties may be especially important to maintaining a sense of normalcy for your kids. Some of those properties include:

The annual military divorce rate is not as high as many people believe. The divorce rate has remained at 3 percent over the last four years. Numerically speaking, 21,290 of 689,060 married troops divorced in 2017. 

The legal issues surrounding military marriage and divorce can be difficult to understand, as military law is different than civilian law. Over the past few years, many changes have been made regarding military pension and its division with divorcees. 

When a couple decides to end to their marriage, determining how to divide marital property is often a challenging process. Before division can even begin, the parties and the court must first establish what constitutes the marital estate. Illinois law provides fairly straightforward guidelines as to what is considered marital property and what is not, but, as with most areas of law, there may be some exceptions to the rules. On such variation may include a marital home purchased prior to the marriage, which, by the letter of the law, could be considered non-marital property.

In Contemplation of Marriage

According to the Illinois Marriage and Dissolution of Marriage Act (IMDMA), assets that are acquired prior to the marriage are generally non-martial property, and those acquired by either spouse subsequent to the marriage are part of the marital estate. By this standard, a home purchased before a couple actually gets married could ostensibly be considered non-marital property, especially if the home was titled in just one party’s name.

Despite the best theoretical intentions of the law, the real world often proposes logistical challenges. For example, it is not uncommon for a couple to begin looking for a home and complete the purchase before their marriage, with the intention of the sharing the home once they are married (or sooner). If the marriage subsequently ends in divorce, the status of the home as marital or non-marital property may be in question. Over the last four decades, several cases around the state have addressed similar situations and appellate courts have established a reliable case law precedent.

Everyone knows that when you get divorced, your ex-spouse gets half of everything—unless you have a prenuptial agreement. That is just the way it works, right? Well, not exactly. Not in Illinois anyway, along with about 40 other states. The idea of an equal 50-50 split applies only to the nine states that maintain a standard known as community property in divorce. The remaining states, including Illinois, use what is called an equitable distribution standard, which may vary slightly from state to state, but generally requires a more in-depth consideration of a divorcing couple’s property and circumstances.

Determining and Valuing the Marital Estate

The equitable distribution guidelines in Illinois are contained in the Illinois Marriage and Dissolution of Marriage Act. The process begins with establishing which assets belong to the couple and which belong to each individual spouse. Those that belong to the couple include all property acquired by either spouse during the marriage with limited exceptions for gifts, inheritances, and judgments. Assets owned by either spouse prior to the marriage, along with the exceptions to marital property, are non-marital property and not subject to division. The value of the marital estate must also be determined, which may require the assistance of various experts, including real estate appraisers, financial advisors, and other professionals.

Considerations for Equitable Distribution

Once the marital estate has been established and valuated, the court must make a determination regarding the portion of the estate to be allocated to each party. In doing so, the court is required by law to take into account: