Dividing Marital Property during a Divorce Proceeding

 Posted on February 04,2015 in Divorce

Aside from child custody, division of marital property is one of the most contentious issues divorcing couples face, especially if they entered the divorce proceeding without a premarital or postmarital agreement outlining these particulars.

The first thing to understand is exactly what assets constitute marital property, as opposed to non-marital property. The law presumes that all property acquired by either spouse during the marriage is marital property.  However, there are several exceptions:

• Property acquired by gift, legacy or descent;
• Property acquired in exchange for non-marital property (assets brought into the marriage) or in exchange for property acquired by gift, legacy or descent;
• Property acquired by a spouse after the couple has been legally separated (remember that a legally separated couple is still married);
• Property excluded by a valid agreement between the parties, such as in a premarital agreement;
• Increases in value of property acquired by any of the above methods; and
• Income from property acquired by any of the above methods.

Equitable Factors

Once the court determines what is and what is not marital property, the next step is deciding how these assets should be divided. Illinois is not a community property state, meaning that courts do not divide the property equally. Instead, the law requires courts to make and “equitable” division. There is no hard-and-fast rule – what is equitable for one couple might not be equitable for another couple. But the law does require courts to consider certain factors when making this determination, including:

• What each party contributed to the marriage, whether by acquiring assets or preserving the family unit as a homemaker;
• Whether a party squandered the marital property or any non-marital property;
• The value of the property assigned to each spouse, including both marital and non-marital property;
• The duration of the marriage;
• Whether the parties entered into a premarital or postmarital agreement deciding property issues in advance (if those divisions are not equitable, the court can choose a different division scheme);
• Each party’s economic circumstances (e.g., current salary, employment opportunities and reasonable opportunities for future acquisition of capital assets and income);
• Each party’s age, health and other needs;
• The child custody arrangement and which parent the court names the custodial parent;
• Any obligations and rights that either party has from a prior marriage;
• Whether the apportionment is in lieu of or in addition to maintenance payments; and
• The tax consequences of the property division.

Courts weigh these factors differently depending on the individual family’s circumstances. Property distribution is complicated and often contentious, which is why you need an experienced attorney who can advocate on behalf of your interests. Contact one of our experienced Kane County family law attorneys today. We can assist those in the St. Charles area.