Divorce laws differ in every state. Some states are community property states, while others, like Illinois, are equitable division states. Under Illinois divorce laws, divorcees are not entitled to an even 50/50 split of marital assets. In most cases, a spouse is unlikely to receive half of everything.
What is a community property state?
In community property states, all assets acquired during a marriage (and while domiciled in the state) are split evenly. As of late 2020, community property laws are in effect in nine states, including Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin.
Assets that may be evenly divided while living in community property states include income, retirement accounts, savings accounts and various types of personal property purchased with community funds. Community property also includes debts, which may be subtracted from the divided total.
The assets to be divided in a community property state exclude those that were acquired prior to the marital union and after a legal separation. Any gifts or inheritance received by one spouse are also excluded from being divided evenly between the divorcing parties.
Divorcing spouses may own homes in other states, which may be community property states. For instance, couples may own a home in Illinois and a vacation home in New Mexico. The permanent legal residence and where income taxes are paid determine whether community property laws are applied.
What is an equitable property state?
Illinois is an equitable division state. Divorce courts divide marital property fairly—which may not necessarily mean evenly. Consequently, a spouse is unlikely to receive half of all marital property. Courts consider a number of criteria when determining what is an equitable division of marital assets:
1. Length of Union
Length of marriage is one factor that courts consider. In short-term marriages, the law functions to prevent wealth-seekers, who marry millionaires with the intent to pursue divorce the next day, from inheriting the spouse’s wealth. In long-term unions, homemaker contributions are evaluated.
Homemaker contributions, which may include child rearing, homemaking and otherwise supporting a working spouse, are significant to the family unit. In fact, in equitable division states, a homemaker’s contributions are often given equal weight with the financial contributions of the working spouse.
However, when homemaker contributions are weak, such as in families without children or the house remains unkempt, a divorce attorney can make a case for little or no property award. Every divorce case is unique, so there are no guarantees when it comes to homemaker contributions.
Existing pre-nuptial and post-nuptial agreements are flexible yet enforceable in equitable division states. Specific items may be identified as non-marital property, per either agreement. Pre-nuptial or post-nuptial agreements may also exclude all marital property acquired during the course of the union.
Each spouse’s status is given weighty consideration when determining the division of marital assets. Courts consider either spouse’s age, health and occupation. If one spouse is not employed, the courts will assess the individual’s future employability when dividing marital assets.
The courts may award more property to a spouse that has an income disadvantage. In many marriages, both spouses are employed. However, some spouses may delay a career in order to raise young children. Such a situation disrupts the potential income stream and is examined by the courts.
Child rearing responsibilities are also given weighty consideration when dividing marital assets equitably in Illinois. As part of a property division, one parent may be awarded the family home, especially in cases where the courts see good reason to keep the children in the home.
When financially practical, it is common for the courts, and even the parents, to ensure the children remain in the same marital home in order to be in the same school district and near friends. Divorcing spouses may keep the mortgage until an agreed upon date, and then financially divorce.
An Illinois divorce court will consider a divorcing spouse’s financial obligations from a previous marriage. One spouse may be responsible for paying child support for children from another marriage. Custodial arrangements of children of the marriage are also carefully examined.
Inheritances and gifts are not deemed marital property. Exceptions occur when the inheritances or gifts are deposited in a joint bank account and withdrawn to pay for joint expenses. In these cases, the inheritances or gifts become marital assets that will be divided equitably.
Property is assigned value, which may be applicable to both marital and non-marital property. One spouse may own a large share of non-marital assets; this would incline Illinois courts to award a significant proportion of marital assets to the other spouse.
When divorcing, couples are advised to prepare a complete list of assets, including personal property, vehicles, houses, investments, retirement accounts and bank accounts. Any goods acquired during the course of the marriage and that are not gifts are considered marital property and subject to division.
Work with a Divorce Attorney
Divorce can be a complex path to navigate without the expertise of divorce attorneys from a reputable family law firm, like Allen Gabe Law, P.C. We bring over 60 years of experience to divorce cases of all types, including contested and uncontested divorces.
As highly proficient divorce attorneys, we handle every aspect of divorce. Our lawyers represent spouses battling property division, child custody and support, visitation, alimony, financial agreements and domestic violence. We also specialize in creating and enforcing prenuptial and post-nuptial agreements.
The divorce lawyers at Allen Gabe Law, P.C., stay updated on all Illinois divorce laws. You can be assured that you will receive personalized attention and expert legal counsel from our firm. We move through cases swiftly so that clients can return to their daily lives as soon as possible.
When you anticipate a divorce settlement, choose Allen Gabe Law, P.C., for the most qualified and dependable legal representation. Our legal teams prioritize your and your children’s best interests. We serve individuals in Schaumburg, IL and the surrounding areas.
Get an Initial Consultation
Call us at 847-241-5000 ext. 121 for a confidential attorney consultation.