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Lombard divorce lawyersEveryone 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:

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equitable distribution, Illinois law, Lombard property division lawyersThe short answer to that question is no. More accurately, the answer is not necessarily. Dividing property during divorce is a bit more complicated than simply splitting the marital estate in half. In fact, the word "half" does not appear anywhere in the statute governing the allocation of assets in the state. Instead, Illinois law is based on the principles of equitable distribution which look to justly allocate marital property based on the consideration of a number of factors.

Community Property States

The basis for most people’s assumption of splitting property in half is the community property concept currently in place in nine states, including Wisconsin, California, and Texas. These principles maintain that, in marriage, both partners equally own all marital assets and that each is entitled to half upon divorce. This applies regardless of employment considerations, contributions to the marriage or family, or any other seemingly relevant concerns. In many cases, spousal maintenance or alimony awards are used to compensate for such considerations.

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equitable distribution, asset division, Kane County Divorce lawyersFor a large number of divorcing couples, property division is among the most challenging aspects of the entire divorce process. Of course, much of the difficulty depends on how long a couple was married and how much property they accumulated during the marriage. Couples with few or no assets of significant value may be able reach an agreement rather easily, while couples with more complex concerns may end up having to finalize their arrangement through court proceedings. When the court gets involved, the division of property in divorce is governed by the state’s equitable distribution guidelines.

Determining and Valuating the Marital Estate

Prior to the application of equitable distribution principles, the court and the couple must establish what is to be considered marital property. A previous post covered marital and non-marital assets in greater detail, but, in short, marital property is any property acquired by either spouse during the marriage, with certain exceptions for assets such as gifts or inheritances.

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martial assets, division of property, Illinois Divorce AttorneyDivorce can present an entire spectrum of challenges for any couple, as they must contend with a large number of concerns. Depending on their specific circumstances, they may need to negotiate considerations for their children, determine new living arrangements, and establish an agreement regarding spousal support. Despite the difficulties inherent to any those issues, couples frequently have the most trouble in property division negotiations.

Equitable Distribution

Illinois law concerning divorce requires that, in the absence of a reasonable agreement, the property which constitutes the marital estate is to be divided between divorcing spouses. Unlike some states, however, Illinois property division guidelines require the equitable distribution of marital assets and debt as opposed to equal division. While equitable distribution will be addressed in more detail in a separate post, it essentially means that the property should be divided fairly, not necessarily 50/50, based on the consideration of circumstantial factors.

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marital home, marital property, distribution of property, home appraisal, asset valuationAside from the direct impact of divorce on your children and the emotional toll on your psyche, perhaps one of the most important questions that requires your immediate attention is, "What do we do about the house"?

If you reside in Illinois, the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5), states that there should be equitable distribution of all marital property in a divorce. Marital property covers everything from the marital home, finances, vehicles and recreational toys down to all household content acquired during the marriage. Although the decision regarding the family home may prove the most difficult.

Your divorce attorney will review your overall situation, including all variables playing into the decision over the home. Depending on your family needs, you and your spouse may decide that you will remain in the marital home with the children, but you will need to order an appraisal to determine your buy out cost to satisfy your spouse’s interest in the home. If on the other hand, you are open to placing the home on the market and once sold, you will be able to equally split the proceeds with your spouse.

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