Divorce is a complicated process, and property division tends to generate a great deal of stress and contention in any divorce. Illinois upholds an equitable distribution law concerning property division, meaning the court generally strives to ensure the most equitable possible division of marital assets in any divorce case. It’s vital to note that “equitable” does not necessarily mean “equal,” so no one should expect to part with half of all their assets in divorce as they would in a state that upholds a community property statute.
If you plan to divorce in Illinois, you should understand the 12 most important factors that go into any property division determination under the state’s equitable distribution law, which are:
- Each spouse’s contributions to the marriage, both financial and non-financial. This is the most crucial factor. The court will try to ensure an equitable distribution result that aligns with each spouse’s contributions to the marriage, including income, homemaking, and child-rearing.
- Dissipation of assets. Commonly referred to as “wasting,” dissipation includes any willful expenditure of marital assets of a spouse intended to harm the other spouse financially. Dissipation may also refer to the illegal hiding of assets, potentially leading to criminal penalties in some situations.
- The length of the divorcing couple’s marriage. A longer marriage generally infers more closely intertwined finances and a greater amount of marital property, while a shorter marriage typically indicates greater separate property owned by each spouse and less marital property overall.
- The age, health, and disability status of each spouse. If one divorcing spouse has a significant medical condition, their divorce will likely influence their ability to manage this condition and pay for treatment. The court must assess the medical needs and overall health of divorcing spouses when making property division determinations.
- Prenuptial/postnuptial agreements. If a divorcing couple drew up a prenuptial contract before marrying and the contract includes any postnuptial clauses regarding property division, this contract will likely come into play during equitable distribution proceedings as long as the contract is legally enforceable and aligns with applicable state laws.
- Preexisting divorce orders of either spouse. If you, your spouse, or both of you were married previously and have standing divorce orders from your previous divorces, these orders would come into play during equitable distribution proceedings to ensure your new divorce order does not conflict with preexisting divorce orders.
- Each spouse’s future earning potential. It’s common for a marriage to include one spouse who earns significantly more income than the other or one spouse having vastly superior earning potential due to their work history, education, and professional credentials. This typically leads to an equitable distribution resolution that ensures the lower-earning spouse can maintain a similar quality of living to what they experienced while married.
- Tax implications for both spouses. A divorce order and the aligned property division determination significantly impact each divorcing spouse’s tax obligations in the future. It’s vital to consult with an experienced divorce attorney familiar with tax law to ensure you do not agree to property division that entails a massive tax obligation in the future.
- Each spouse’s child custody rights and child support obligations. The court must consider the financial status of divorcing parents and ensure their equitable distribution resolution protects the best interests of the divorcing couple’s children.
- The needs of divorcing parents’ children. The court must make sure that custodial parents have appropriate financial support to ensure they can properly care for their children. It must also assess the timing of property division determinations and custodial parents’ ability to care for their children. For example, the court may award a greater distribution of marital assets to a custodial parent who is a capable caregiver but unable to match the noncustodial parent’s earning power.
- Maintenance. Illinois family court judges typically prefer to rule in favor of finality, meaning their equitable distribution rulings tend not to include maintenance or alimony whenever possible. However, if it is not possible to reach a reasonably equitable distribution of the couple’s marital property, an Illinois judge may award maintenance in addition to or instead of property distribution.
- The value of each spouse’s separate property. The Illinois family court must consider the total value of each spouse’s separate property in addition to the total value of their shared marital property. If one spouse owns significantly more separate property than the other, it’s likely the court will grant this spouse a greater share of marital property in an equitable distribution ruling.
Equitable distribution laws in Illinois can be confusing, but the right legal counsel can make the process more bearable. If you are preparing for divorce in Illinois, contact an experienced property division attorney for more information about how the state’s laws are likely to apply to your divorce case.
