Sometimes, when people think of property division in a divorce, they imagine that the property is divided in equal proportion to each spouse when the divorce is finalized. While this may be true of couples who live in community property states, it is not necessarily true in Illinois. Illinois law requires property division in a divorce to be handled by equitable division.
A divorce court first determines which property is marital property and can therefore be divided using the principles of equitable division. This means that property is divided equitably, or fairly, without it having to be divided in half between the divorcing parties.
Generally, the court does not consider marital misconduct when dividing marital property. However, an issue like the dissipation of marital assets does affect the equitable division. Dissipation of marital assets relates to the inappropriate use of the assets for non-marital purposes. This can sometimes come up if one spouse starts spending marital property to support a new relationship or to start a new business after the couple’s separation pending divorce. Before the court can consider dissipation, one of the spouses has to file a claim alleging dissipation by the other spouse, and meet other requirements.
Other factors that the court can consider in dividing property include the financial situation of the spouses after the divorce. Additionally, the court can also consider the tax implications of the property division, and whether the spouses have other obligations such as paying child support or spousal maintenance coming from a previous relationship.
If the divorcing couple also has children, the court could consider which parent will be primarily responsible for the children in awarding the marital home. This could mean that the court offsets any inequity that results from this in another way, for example by awarding the other spouse other assets, or by not awarding spousal maintenance.
Even when dividing marital assets equitably, the court has to ensure that any valid premarital and postmarital agreements signed by the couple that addresses property division are followed. Therefore, if under a couple’s agreement, all marital property should be divided equally, the court will follow this, even if it is different from Illinois’ default law. The exception to this would be if a court finds that such a method of dividing the property would be against public policy.
Contact an Experienced Divorce Attorney
If you are going through a divorce and are worried about how the division of marital property will affect your ability to keep some assets after the divorce, you need to speak to an experienced divorce lawyer. A divorce lawyer can investigate your case to make sure that property is properly designated as marital or nonmarital property. The attorney can also investigate the possibility of the increased value in non-marital property being divided as marital property. For more information on property division and other divorce issues, contact the passionate Naperville divorce attorneys at the Roscich & Martel Law Firm, LLC for a consultation.