It’s a common trope on television, and in the movies when couples split, each spouse gets half of the partner’s property. It doesn’t matter how long the couple was married and how they accumulated their assets.
In fact, the idea is often played up as motivation for a wealthy person to sign a prenuptial agreement. Especially before marrying someone with a substantially lower net worth to avoid losing half the wealth in a possible divorce.
Which brings us to a couple of important questions: Is this really how divorce works? Is a person at risk of losing half of everything if a marriage fails? Generally speaking, the answer to both of these questions is no. At least not in most cases, anyway.
Some states split the property 50/50 between divorcing spouses. Others require fair sharing between the spouses based on an analysis of the couple’s circumstances.
In every state, however, only marital property is subject to division. This does not usually include wealth either spouse brought with them into the marriage.
Illinois is an Equitable Distribution State
If you plan to get divorced in Illinois, you need to know what the law says regarding the division of property states. First and foremost, you should know Illinois is one of 41 equitable distribution states.
“Equitable distribution” means the law in Illinois specifies each spouse in a divorce will receive a “just proportion” of the couple’s marital property. In some cases, “just proportions” might play out as each spouse receiving an equal share, without guarantee of equal division.
Instead, courts carefully consider the overall big picture. And also divides the divorcing couple’s marital property in a manner that is fair and, well, equitable.
Negotiated Property Settlements
Before we get into the concepts of marital and non-marital property, it’s important to understand you and your spouse are free to develop your own agreement regarding how you will divide your property in your divorce. In fact, Illinois law encourages you to negotiate a settlement if you can so the burden on the court system can be reduced whenever possible.
When you put together your agreement, you can include property and considerations the court cannot include in marital property division proceedings.
For instance, a court will not allow your spouse to have a piece of artwork property belonging to you before marriage. As part of your voluntary agreement, however, you could undoubtedly offer the piece to your spouse—either as a gesture of goodwill or in exchange for other assets.
As long as your settlement is reasonable and equitable enough that both you and your spouse willingly agree to it, the court will usually approve the agreement as part of your divorce judgment.
Identifying Marital Property
The biggest problem with the “my ex gets half of everything” myth is the “everything.” While it is true your soon-to-be ex-spouse may get a portion or more of the property you both own, the key phrase there is “ you both own.”
The law in Illinois states that only a couple’s marital property is subject to division in a divorce. So, what is marital property, then?
The Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5) defines marital property as “all property, including debts and other obligations, acquired by either spouse after the marriage.” The law lists several exceptions to this rule, which are formally considered non-marital property.
The most common exceptions are for the property one spouse receives as a gift or inheritance. Property owned by either spouse before the marriage is non-marital property. Same as any proceeds of selling property that would be considered non-marital.
The law also provides consideration for scenarios in which marital and non-marital assets are combined or “commingled.” In general, if a non-marital property is handled in such a way during the marriage that the property loses its distinct identity as non-marital property, it is considered to be transmuted to the marital estate.
Setting Values for Marital Property
The next step is to establish a value for each piece of the marital estate. Depending on your ability to cooperate with your spouse at this stage, you may not need to be super-specific. Still, it’s a good idea to know how much your property is worth.
For most of your property, assigning an estimated value will probably be sufficient, and you and your spouse can do this mainly on your own. Larger, more complex assets such as your marital home, retirement savings, or any business holdings may require the services of outside experts such as real estate appraisers and financial planners.
If you and your spouse are working toward a negotiated settlement, the two of you may wish to consider the sentimental value of various items. If the court is dividing your property, the focus favors monetary value to keep things as equitable as possible.
Dividing Your Property
After establishing the value of your marital property, the final step determines who will get what. In making its determination regarding how to divide the marital estate, the court considers various factors. This includes but not limited to:
- How much each spouse contributed to the contents and value of the marital estate. This includes the contributions made by a homemaker spouse or stay-at-home parent.
- Any claims of wasted or dissipated property by either spouse.
- Each spouse’s economic situation, including whether one spouse should be given possession of the marital home.
- The value of the property for each spouse.
- The length of the marriage.
- Each spouse’s age, health, occupation, and employability.
- Child custody arrangements for the spouses’ children.
- Support obligations or rights from any previous marriage.
- Whether a spouse will receive property instead of or in addition to alimony.
- The tax consequences of dividing the property.
- Any valid prenuptial agreements or postnuptial agreements between the spouses.
From there, the court will assign each spouse an equitable share of the marital estate. Depending on the types of assets included, the court could give individual assets to one spouse or the other. The court could order the sale of the assets and oversee the division.
To have control over your property division, it’s best to work out a settlement agreement with your soon-to-be ex-spouse.
Work With a St. Charles Asset Division Lawyer
Another way to ensure your rights are protected during the asset division process is to enlist the help of an experienced Kane County marital property division attorney. Your lawyer will work closely with you to fully understand the law and how it applies to your unique situation.
Your attorney can also explain what you need to do to increase your chances of a favorable outcome. Here’s some more info on the divorce division.
