Marriage is often referred to as “tying the knot,” and untying that knot can be very tricky when the marriage is headed for a divorce. One of the most contested matters during the divorce is usually the division of the marital property.
Most states apply “community property” law during property division. However, Illinois is an “equitable distribution” state, meaning that marital property (both assets and debts) are divided among the divorcing parties in fair and just proportions rather than on a 50-50 basis.
Property division based on an agreement between the divorcing parties
A divorcing couple can agree on how they want to divide the marital property without involving the court. To achieve this, they must start by making a full accounting of all the marital assets and debts. The divorcing couple will then negotiate an arrangement for dividing marital property on their own, with the help of their attorneys or through mediation.
For this approach to work, both parties must be completely transparent about what they own. If either party lies about their finances or tries to hide assets, the negotiations will be futile, and their arrangement will be based on false information.
Property division through the court
As already mentioned, Illinois is an equitable distribution state. This means that only marital assets are up for division. Any property acquired prior to the marriage is assigned to the original owner. The amount of property each party receives following the divorce is always fair or equitable but not exactly equal.
That said, several factors come into play when dividing marital property in the state. Some of these factors include:
- Each party’s contribution to the marital estate
- Non-financial contributions
- Each party’s financial circumstances
- The duration of the marriage
- Child custody arrangement
- Any prior prenuptial agreement
- Tax implications of marital property division
One of the most important matters that divorcing couples have to sort out during the divorce process is the division of marital property. Understanding your property rights can help you get what you are rightfully entitled to when dissolving your marriage.