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How Does Marital Property Get Divided?

martial_assetsMore than 95% of divorces are settled outside of court, according to Forbes.com. Divorce settlements are best kept out of court for good reason. Marital property can be tedious to divide by law in states that require equitable distribution. Illinois happens to be one of those states. Equitable distribution claims to be equitable, or fair, but it is not equal by nature.

How will taking your divorce to court in Illinois affect the way in which your martial property is divided?

 What Is Considered Through Equitable Distribution?

For couples who aren’t able to agree on how to divide their marital property upon divorce, they may take the matter to court. An Illinois judge will consider the following factors before division occurs:

  • The effects of any prenuptial agreements
  • The length of the marriage
  • Each spouse’s age and physical/emotional health
  • Whether a spouse is receiving alimony
  • Each spouse’s occupation, income, and earning potential
  • The value of property assigned to each spouse
  • Each spouse’s liabilities and needs
  • Either spouse’s obligations from a prior marriage
  • Ongoing arrangements for any children of the marriage
  • The desire of awarding the family home, or the right to live in it for a specific period of time, to the party with physical custody of the children
  • The contribution of a spouse to the education, training, or earning power of the other

(These are only some of the factors considered by a judge presiding over a divorce case.)

What Properties Are Divided by Equitable Distribution?

You should first understand that there are two types of property.

  • Separate property is everything owned by either spouse prior to the marriage, inheritance, gifts from third parties, and payments from personal injury settlements. Separate properties can be taken into account by a judge but are not divided between the couple.
    • Marital property is usually everything acquired during the marriage regardless of which spouse owns the property or in whose name the property is titled. If you brought separate property into a marriage but commingled it by joint ownership it’s now considered marital property. If your spouse has a 401k that was acquired during marriage, you’re entitled to a share of it upon divorce because it wasn’t acquired before marriage.

What Are the Most Commonly Divided Properties?

After you understand that only marital property is divided by the court, you can better understand which properties will specifically apply to your divorce. The following properties are the most commonly divided.

      • Pension Plans, 401ks, IRAs and other retirement plans
      • Differed compensation and tax refunds
      • Bonuses and commissions
      • Life Insurance (especially those with cash value)
      • Brokerage accounts- mutual funds, stocks, bonds, etc.
      • Bank Accounts- checking, savings, Christmas club, CDs, etc.
      • Closely-held businesses
      • Professional practices and licenses
      • Real Estate – houses, rental property
      • Accumulated debts – mortgages, loans, credit cards
      • Vehicles and boats
      • Art and antiques

Is Equitable Distribution Right for You?

If you and your spouse cannot reach an agreement about what should be divided, we at Sherer Law advise you seek help from our office. An attorney can help facilitate negotiations without going to court. Avoiding court has proven to be the more satisfying solution for multiple reasons:

      • A judge does not take into consideration emotional attachment. You may have an antique in the house that has sentimental value. Negotiating by terms of sentiment has little place in court settlements. The judge sees all that you’ve acquired in marriage as property and nothing more.
      • The court process is very detailed and expensive. Every marital property must be assessed for exact value. You may instead consider hiring someone to assess only the important properties over which you and your spouse are debating.
      • Staying out of court allows you to sell certain properties and divide the proceeds as the two of you see fit. You may also agree to own property together for a time to benefit the family. While the court does consider a vast amount of personal details in how it divides property, dividing specific property based on those personal details is highly unlikely.

At Sherer Law Offices, we’ve seen that settling out of court leaves divorced couples much happier. You and your spouse will save money, will likely end up in possession of what is most important to you, and if children are involved their lives are situated more securely.

If you have questions about the division of marital property during divorce, either through court or in a personal settlement, call Sherer Law Offices to make an appointment with one of our experts.

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