Illinois law requires that property in a divorce be divided equitably, but that does not necessarily mean that it will be equal. Some couples agree on how to divide what they own while other couples need the help of an attorney or a mediator to come to a settlement.
Couples who are unable to come to an agreement will end up in court and ask the judge to make the decision for them. Sometimes an arbitrator will make the decision. A judge in Illinois will consider all of the factors that are relevant when making a decision about the division of property. Some of those factors include the effects of any prenuptial agreements, the couple’s occupations and ability to be employed, the length of the marriage, and custody arrangements for any children.
Separate Property vs. Marital Property
When dividing property, the first thing that needs to happen is differentiating between separate property and marital property. Separate property includes the property that either spouse owned before they got married. It also includes property that was inherited or received as a gift. Income from separate property is also included.
Marital property includes most of the debts and assets acquired during the marriage. Sometimes, separate property can be converted into marital property. This can be specified in a written agreement. A spouse might also change separate property into marital property by changing the property title from an individual title to a joint title.
Marital and separate properties are occasionally mixed together;?this is called “commingling.” Couples might combine their property on purpose, or they may do it without even knowing it. For example, a bank account that one spouse has before the marriage can become marital property if the other spouse deposits money into it. A house that is owned by one spouse can also become marital property if the other spouse makes a mortgage payment or pays for any other expenses regarding the house. This can make things very complicated and require the help of an experienced divorce attorney.
After figuring out whether the property is marital or separate, the spouses, or possibly the court, will assign monetary value to the items. If a couple needs help with determining value, they can hire a professional appraiser. Things such as retirement accounts are difficult to evaluate and may require the advice of a C.P.A. or other financial advisor.
Assets can be divided by assigning particular items to each spouse. There may be a need for an equalizing payment if one spouse gets considerably more than the other. They may also choose to sell a particular piece of property and split the money equally. Sometimes, they agree to continue owning the property jointly. For example, a divorced couple may decide to keep the family house until their children are no longer in school or keep it as an investment property with the hope that the value will increase over time. This is NOT recommended for couples who don’t get along, but it may be an advantage for couples who get along well and can remain friends after they are divorced.
If you have questions about the division of your property during a divorce, you need the advice of an experienced divorce attorney.