Monday, 30 January 2017 01:51

What Constitutes an Equitable Division of Marital Property in an Illinois Divorce Proceeding?

Written by Christian Collin, Family Law Attorney

Having practiced divorce and family law in the Chicago area for nearly two decades, I have a thorough understanding of the legal and financial complexities involved in a contested dissolution of marriage.

The Potential Financial Implications of Getting a Divorce in Illinois

Regardless of your particular situation, it is imperative that you know your respective legal rights and objectives. For many litigants, the first issue of concern when considering divorce is finances and the costs associated with divorce. One of the most important functions in obtaining a dissolution of marriage is dividing the marital estate.

Illinois is an equitable distribution state. This means that all of the marital assets and liabilities must be equitably divided by the court. Marital assets can include houses, cars, household furnishings and furniture, checking and savings accounts, pensions, retirement accounts, investment portfolios and business interests.

It Doesn't Matter Whose Name Is on the Property in a Divorce

With limited exceptions, property acquired by either spouse subsequent to the marriage and before entry of a judgment of dissolution of marriage is presumed to be marital property. This is true regardless of whether title is held individually or by the spouses in some form of co-ownership such as joint tenancy, tenancy in common, tenancy by the entirety, or community property. Marital debts usually include mortgages, home equity loans, car notes, and credit cards. Again, it doesn't matter whose name is listed on the debt. Whether the liability can be characterized as marital comes down to the question of what the debt was used for, and whether it either directly or indirectly benefitted the marital estate.

While this may sound pretty straightforward, the prospective divorce litigant must also be well aware of the fact that the concept of equitable division is relative and does not necessarily mean equal. Courts have wide discretion in determining what is fair or equitable in dividing a marital estate. Judges may consider many different factors in reaching a conclusion as to what a particular party is equitably entitled to and there are no hard and fast rules in this area. Any judicial determination of equitable division is made on a case by case basis.

In dividing marital property, Section 503 of the Illinois Marriage and Dissolution of Marriage Act requires judges to consider the following factors:

  • The contribution of each party to the acquisition, preservation, or increase or decrease in value of the marital or non-marital property, including the contribution of a spouse as a homemaker or to the family unit.
  • The dissipation by each party of the marital or non-marital property.
  • The value of the property assigned to each spouse.
  • The duration of the marriage.
  • The relevant economic circumstances of each spouse when the division of property is to become effective, including the desirability of awarding the family home, or the right to live therein for reasonable periods, to the spouse having custody of the children.
  • Any obligations and rights arising from a prior marriage of either party.
  • Any antenuptial (i.e., contract between two people who are about to marry, setting out the terms of possession of assets, treatment of future earnings, control of the property of each, and potential division if the marriage is later dissolved) agreement of the parties.
  • The age, health, stations, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties.
  • The custodial provisions for any children.
  • Whether the apportionment is in lieu of or in addition to maintenance (i.e., alimony).
  • The reasonable opportunity of each spouse for future acquisition of capital assets and income.
  • The tax consequences of the property division upon the respective economic circumstances of the parties.

For a more comprehensive explanation of equitable property distribution and how the law applies to your specific case, please contact me: Attorney Christian S. Collin for a free consultation. Collin Law Offices, P.C., has locations in downtown Chicago as well as in Chicago's western suburb of Berwyn. Both offices serve clients in suburban Cook County and DuPage County. We will also be opening a new law office in Berrien County, Michigan, to serve clients in the Benton Harbor/St. Joseph area.

 

Disclaimer
This blog post is made available by the law firm for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this site you understand that there is no attorney client relationship between you and the blog/website publisher. The blog/website should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. Family law attorney Christian Collin expressly disclaims any and all liability of any kind or nature with respect to any act or omission based wholly or in part in reliance on anything contained in this blog/website.

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