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Property Division in an Illinois Divorce

In any Illinois divorce, the spouses will need to divide their property and debts. In the vast majority of cases, our divorce lawyers are able to help the parties negotiate a property settlement agreement and a trial is not required. Our success with settlement negotiations is the natural result of our years of experience in dealing with high income earners, high asset divorces and complex family law litigation.

First, your divorce attorney will need to determine what property and debts you and your spouse have. Both spouses have to comply with mandatory financial discovery rules that require them to provide each other with a full disclosure of their respective finances including all assets and debts. Next, a value must be placed on each asset. Sometimes it is necessary to have some assets, such as business interests and art, appraised. Then, with your goals in mind, your divorce lawyer will negotiate with your spouse and his or her attorney to reach an agreement regarding the distribution of assets and debts between you.

Although most cases are successfully settled, sometimes the parties cannot agree on which assets are marital and which are not, the value of certain assets, or how they are to be distributed. In such cases, the divorce attorneys at Weiler & Lengle are prepared to take the case to trial.

Equitable Distribution

If you and your spouse are unable to reach an agreement, the court will distribute the assets and debt that are in the marital estate between you according to the rule of equitable distribution. Equitable distribution does not mean that the distribution will be equal, but rather that it will be what the court considers fair.

Under Illinois divorce law, the court is to consider a number of factors including: each party's contribution to the marital and non-marital property; the value of the property assigned to each spouse; the length of the marriage; the economic circumstances of each spouse; each spouse's obligations and rights from a prior marriage; the parties' prenuptial agreement, if there is one; the age, health, occupation, income, and liabilities of each spouse; the custodial provisions for the children; and the tax consequences of the division.

Marital Estate

"Marital property" means all property acquired by either spouse subsequent to the marriage. Marital property makes up the "marital estate" that is subject to equitable division.

Common types of marital property include:

  • Homes
  • Vehicles
  • Businesses and business interests
  • Real estate
  • Household furnishings
  • Stocks, bonds, and other investments
  • Bank accounts
  • Pensions and retirement plans
  • Antiques, art, and collectables

How title to property is held does not control its division and distribution. If the property was acquired during the marriage, it is part of the marital estate and subject to division. Thus, for example, even if a business interest or a pension is in the name of one spouse, if it was acquired during the marriage, both spouses may have an ownership interest in it. If you bought property with your earnings during your marriage, such as a home or a vehicle, the property is likely marital even if the title is just in your name.

Non-Marital Property

"Non-marital property'' that is kept separate from marital property is not included in the marital estate. Each party to a divorce is entitled to keep his or her non-marital property.

Non-marital property includes:

  • Property acquired before the marriage
  • Property acquired by gift or inheritance to one spouse
  • Property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift or inheritance
  • Property acquired by a spouse after a judgment of legal separation
  • Property excluded from the definition of "marital property" by agreement between the spouses
  • Property obtained by judgment awarded from a spouse to another spouse
  • The increase in value of property acquired by one of the above-listed methods
  • Income from property acquired by one of these methods — for example, if you received a gift or inheritance during your marriage and you kept it in a separate account in your name, the income / interest earned would be non-marital and your spouse would not have an ownership interest in it.

When Non-Marital Property is Not Kept Separate

Non-marital property can be transformed or transmuted into marital property by a variety of actions. For example, a gift or inheritance to one spouse can be deposited into a joint bank account. The commingled funds will then likely be considered part of the marital estate. One spouse may take savings he or she had accumulated before the marriage and use them as a down payment on a home that is titled in both names. The down payment becomes a gift to the marital estate and the home is marital property.

Get Assistance with Your Divorce Property Settlement

The Illinois rules regarding marital and non-marital property and the transmutation of non-marital property into marital property (and vice versa) are very complex. Careful analysis by an Illinois divorce attorney is required to make sure that the assets and debts owned by you and your spouse are correctly classified and your rights to both marital and your separate property are protected.

If you are not already represented by an Illinois divorce law firm and would like to schedule an initial consultation, we welcome you to contact Weiler & Lengle. Our St. Charles, Illinois divorce attorneys serve families throughout the Tri-City / Fox River Valley area.

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