When entertainers and comedians talk about divorce, they often make references to the idea that both spouses will automatically get half of the couple’s assets. Such tropes are often mildly misogynistic, suggesting that a rich man who gets married is at risk for his wife taking half of everything in a divorce—including the assets he accumulated before the marriage. In reality, this popular depiction of divorce is essentially dead wrong, especially in Illinois. While some states do provide for an equal division of marital property in a divorce—and marital property does not usually include property that a spouse owned prior to marriage—Illinois is not among them. Instead, Illinois follows the principles of equitable distribution, which means that each spouse will receive a portion of the marital estate, but their portions will not necessarily be equal.
Fair Does Not Always Mean Equal
If a divorcing couple is able to reach an agreement regarding their marital property, an Illinois court will approve it as long as the agreement is not found to be unconscionably one-sided. If the couple cannot reach an agreement on their own, the court is required by law to allocate their marital property justly and fairly. The law makes no reference to the idea that the split should be exactly equal.
To determine what constitutes an equitable allocation, the court must consider the circumstances of each party, the marriage, and the divorce. The idea is to avoid putting either party is put an avoidable financial disadvantage. The Illinois Marriage and Dissolution of Marriage Act provides a list of factors that must be considered by the court in making its decision, which includes:
- Each spouse’s contribution to the value of the marital estate and its value, including the contributions of a stay-at-home spouse or parent;
- Any claims of dissipation of the marital property by either spouse;
- The value of the property being allocated to each spouse;
- The duration of the marriage;
- Each spouse’s financial circumstances following the division of property;
- Parenting arrangements being made for the couple’s children;
- Whether spousal support has been or will be ordered;
- Each spouse’s age health, occupation, and expected ability to earn income in the future;
- Tax liabilities for each spouse as a result of the division of property; and
- Any valid prenuptial or postnuptial agreement between the spouses.
These considerations allow the court to develop a fairly accurate picture of the couple’s circumstances. Based on its findings, the court will divide the marital estate fairly and reasonably.
Let Us Help
If you are considering a divorce and have questions about the asset division process in Illinois, contact an experienced divorce attorney in St. Charles. Call 630-377-7770 for a free, no-obligation consultation at Bochte, Kuzniar & Navigato, P.C. today.