In the movies and on television, casual references to divorce and property division seem to promote the idea that divorcing spouses will automatically split their assets down the middle, with each person getting an equal share. While there may be some level of truth to that assumption in certain states, the reality in Illinois is often much more complex. Divorce and property division statutes in the state require the equitable distribution of marital assets, which means fair and just, not necessarily equal.
As with most aspects of divorce, there is no requirement that all decisions must be left up to the court. You and your spouse are able to work out a property division agreement that is reasonable and meets the needs of all involved parties. If the resulting agreement is not unconscionably one-sided and you and your spouse voluntarily agree to its terms, the court is very likely to approve it and incorporate it into your divorce settlement. Such an agreement, however, is not always possible; in which case, the court must intervene and make a determination.
Considerations for Equitable Distribution
To begin the process, the court must first establish the marital estate and its value. With few exceptions, any property acquired by either spouse during the marriage is subject to division. Value can be determined by professional appraisers, as needed, or by reasonable estimates. Then, the court will be tasked with reaching a conclusion regarding what is equitable and just based upon the circumstances of the marriage and divorce. By law, required considerations include, but are not limited to:
- Each spouse’s contribution to the marital estate, including the intangible contributions of a homemaker or stay-at-home parent;
- Any property dissipated by either spouse;
- The duration of the marriage;
- The value of property allocated to each spouse, and the anticipated impact of the allocations;
- The age, health, income capacity, and resources of each spouse;
- Provisions being made for the couple’s children;
- Pending requests or previous decisions regarding spousal maintenance; and
- The tax consequences of any and all property allocations.
Marital misconduct may not be considered, no matter how egregious the actions may have been. Thus, cheating, drug abuse, and abandonment may have no bearing on the property division process, though a spouse may have other avenues for remedy in such a situation.
If you are considering divorce and have questions about property division and equitable distribution in Illinois, contact an experienced DuPage County family law attorney. We will review your case, help you understand your options, and provide the answers you need throughout the divorce process. Call 630-871-1002 to schedule a free consultation at Andrew Cores Family Law Group today.