Divorce can be an immensely challenging process, and one of the most complex issues you may have to face is the process of dividing up your marital property with your spouse.
Because there’s a lot of confusion surrounding how the process actually works, couples often go into negotiations with unreasonable expectations – and that’s a recipe for litigation. Learning more about what to expect can help both you and your spouse take a measured approach to what comes next in your divorce.
What is marital property?
You can’t divide anything until you take inventory of what you own and separate the marital property from any non-marital property.
Broadly speaking, marital property generally includes all the assets and debts acquired by either party during the course of the marriage, while non-marital property can include things like personal gifts received by only one spouse, inheritances and real estate or other property that was owned prior to marriage.
Anything classified as marital property has to be divided, while non-marital property remains the sole possession of its respective owners. However, there are many exceptions and complexities that can be involved, especially if non-marital property has been commingled with marital property over the years.
For example, you may have purchased the home you live in before your marriage and kept it in your name. That makes it your non-marital property. However, if you did renovations to the home recently and paid for them out of marital funds, your spouse may be able to claim a share of the home’s increased equity. Similarly, a retirement plan that you had prior to marriage may ultimately be a mix of separate and marital property, since you probably continued to contribute to it throughout your marriage using what would have been considered marital funds.
What method is used to divide the marital estate?
Illinois has adopted the principle of equitable distribution when it comes to property division in a divorce. Unlike a community property state where all marital property is supposed to be divided 50/50, the equitable distribution model takes into account the unique circumstances of every couple’s situation – with the ultimate goal of being fair.
Fair, of course, does not necessarily mean “equal.” In an effort to come to a just and reasonable division of the marital assets, the court will look at things like:
- The duration of the marriage: The longer the marriage, the more likely that the court will divide the marital assets more evenly.
- The contributions of each spouse to the marriage: This may include both financial contributions and contributions in-kind, such as homemaking or parenting responsibilities, as well as career sacrifices one spouse made for the other.
- The economic circumstances of each spouse: The court may consider each party’s current income, personal assets and potential to be self-supporting, taking into account things like their age, education and health.
- Any custodial provisions for the couple’s minor children: The court may need to consider how a primary caretaker’s financial needs may be affected by that responsibility.
- The presence of prenuptial or postnuptial agreements: These sometimes create “carve-outs” that can dictate what is and is not subject to division.
If a couple can reach an agreement on property division through negotiation, the court will usually ratify the settlement. That approach often leads to mutually satisfying outcomes for both parties because it allows for flexibility and customization. If an agreement cannot be reached, then the court can intervene.
Because this topic is very complicated, it’s always wisest to get experienced legal guidance that’s tailored to your specific situation.