For all married couples, going through the divorce process involves dividing their marital property. While some couples will have a prenuptial or postnuptial agreement that specifies how they will divide their property, in most cases, divorcing spouses will need to divide their property according to Illinois law.
If you have a prenuptial or postnuptial agreement, the terms of your agreement will take precedence over Illinois’s property distribution laws—as long as your agreement is legally enforceable. If you don’t have a prenuptial or postnuptial agreement, there are some important considerations you will need to keep in mind as you prepare for your divorce.
What Divorcing Spouses Need to Know About Property Division in Illinois
Here are seven key property-related considerations for divorcing spouses in Illinois:
1. All of Your Assets Fall Into One of Two Categories: Marital or Separate
Before you start thinking about dividing your assets in your divorce, it is important to understand that your assets will all fall into one of two categories. Under Illinois law, assets are either:
- Marital Assets – Marital assets are owned jointly by both spouses and are subject to division in their divorce.
- Separate Assets – Separate assets belong exclusively to one spouse and are not subject to division during the divorce process.
Thus, as a starting point, it will be important to make sure you know which assets belong to you, which assets belong to your spouse, and which assets are on the table in your divorce. While any assets that one spouse brings into the marriage at the outset are generally that spouse’s assets to keep, there are exceptions, and separate property rights can arise under other circumstances as well.
2. Only Marital Assets Are Subject to Division in Your Divorce
As we just discussed, only marital assets are subject to division during the divorce process. Once you have identified your (and your spouse’s) separate and marital assets, one of the next steps in the process will be to begin thinking about which marital assets you want to prioritize.
Oftentimes, it will make sense for both spouses to keep a mix of their shared physical and financial assets. But, aside from Illinois’s “equitable distribution” rule (see below), there are few hard-and-fast rules that apply to the distribution of marital property in Illinois. Divorcing spouses can also agree to sell assets (i.e., the family home) and split the proceeds; and, in some cases (i.e., with digital assets), it may be possible to make duplicates so that each spouse gets to keep a copy after their divorce.
3. Illinois Follows the Rule of “Equitable Distribution”
When dividing their marital assets, divorcing spouses in Illinois must adhere to the state’s “equitable distribution” rule. This rule states that spouses must divide their assets fairly (or “equitably”)—and not necessarily equally.
Under Illinois law, divorcing spouses must consider several factors in order to decide what is equitable under the circumstances at hand. In many cases, a 50/50 split will make sense. But, divorcing spouses should not assume that a 50/50 split is warranted. Instead, they should work with their divorce lawyers to ensure that they are making informed decisions based on their personal family and economic circumstances.
4. Both Spouses Need to Be Willing to Compromise
Since divorcing spouses are required to divide their marital property in Illinois, this means that both spouses need to be willing to compromise. If divorcing spouses can’t find a way to compromise, they will need to ask a judge to divide their property for them. Not only is going to court more expensive than reaching a resolution out of court, but it also means both spouses lose control over the outcome of the process.
Fortunately, there are a variety of strategies for finding a way to come to terms during the divorce process—and most divorcing couples don’t end up needing to go to court. By working with an experienced divorce lawyer, you can ensure that you are considering all of your options, making informed decisions, and pursuing a path that will ultimately lead to an amicable resolution.
5. There Are Options for Keeping Assets You Want to Prioritize (But No Guarantees)
While it is important to be willing to compromise when necessary, there are options you can pursue if there are specific assets you want to keep after your divorce. Keep in mind, there are probably specific assets your spouse wants to keep, too, and this fact alone can help facilitate productive discussions in many cases.
6. You Don’t Want to Leave Property Ownership Unresolved After Your Divorce
When going through a divorce, it is important to take a comprehensive approach to the process. In particular, you do not want to leave the ownership of any marital assets unresolved after your divorce. This will inevitably lead to issues down the line; and, when property ownership issues arise after a divorce, resolving these issues can be both more costly and more complicated.
7. Divorcing Spouses Must Also Divide Their Marital Debts
Finally, along with dividing your marital assets during your divorce, you and your spouse must also divide your marital debts. Common marital debts include mortgages, car loans, and credit card debt—but divorcing spouses may need to deal with student loans, personally guaranteed business loans, and various other debts as well.
In some cases, marital assets and marital debts go hand-in-hand. For example, the spouse who keeps the family home will often assume sole responsibility for the mortgage as well. But, this is not always the case; and, here too, divorcing spouses who are able to work together will have a variety of options for finding a mutually agreeable path forward.
Learn More from Lake County Divorce Lawyer Deanna J. Bowen
Do you need to know more about the property-related aspects of the divorce process in Illinois? If so, we invite you to get in touch. To request a free consultation with Lake County divorce lawyer Deanna J. Bowen, please call 847-306-3204 or get in touch online today.
