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Many presume that when they get a divorce, all the marital property will be divided equally. However, for those living in the state of Illinois, this presumption can lead to major disappointments. Illinois is an “equitable division” state, and not a “community property” state. When facing a divorce, many wonder what the difference is between an “equitable division” and “community property” state, what exactly marital property is, and what this all means for property rights during and after the divorce proceedings. The following contains information to which you should refer if you have questions about property division during a divorce, and any further questions should be directed to one of our family law attorneys.
Community Property State v. Equitable Division State
In a “community property” state, it is presumed that all marital property is equally owned by both spouses, and in the event of a divorce, the property will be divided 50-50. Presently, there are only nine community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.
Illinois favors “equitable division” of marital property. What is considered “equitable” is determined on a case by case basis. There are numerous factors that the Illinois Marriage and Dissolution of Marriage Act requires the courts to consider in order to make an equitable disposition of property. While it may be surprising to some, marital misconduct is not a consideration in dividing marital property; in fact, by law, the court is prohibited from considering marital misconduct in this process. The essential factors in determining equitable division of marital property are as follows:
The contribution of each party to the value of the marital and/or non-marital property, in either its acquisition, increase in value or decrease in value. For the spouse who plays the role of the homemaker, do note that this is viewed as a form of contribution;
Any spouse who commits waste or devalues marital and/or non-marital property;
The value of the property assigned to each spouse;
The length or duration of the marriage;
The economic circumstances of each spouse upon the division of property. Additional concerns include which spouse will have custody of the children and the desirability of being awarded the family home or rights to reside there for reasonable periods of time;
Rights and duties arising from a previous marriage of either spouse;
Prenuptial agreements, if any, signed by the parties;
The characteristics and capabilities of each spouse, such as their age, health, occupation, income, vocational skills, employability, assets and liabilities, etc.;
The custodial provisions or arrangements for the children;
Whether the property division is in lieu of or in addition to maintenance support;
Whether each spouse will have reasonable opportunities in the future to acquire further capital assets and income; and
The tax consequences of the property division on each spouse.
What is marital/non marital property?
For starters, “non-marital property” is property owned solely by one spouse and not owned together by the couple. Non-marital property is not subject to equitable division in the event of a divorce. Examples of non-marital property include property acquired by one spouse separately by gift, legacy or descent; property acquired by one spouse separately prior to marriage; or property one spouse purchased with separate funds during a marriage. “Marital property” is any property that both spouses acquired during the marriage.
How will assets be divided in a divorce?As presented earlier, property division is determined on a case by case basis upon the assessment of the aforementioned factors, and all marital estates vary. Some divorce cases could be settled with a 60-40 disposition of marital property, while in other cases the marital property could all be given to one spouse. The DuPage County division of property attorneys at Martoccio & Martoccio, located in Hinsdale, Illinois, are experienced in working with all types of marital assets and know how to distinguish non-marital and marital property. If you are considering divorce or are presently involved in marital proceedings, contact our firm to schedule a free consultation, and we will discuss all your property division questions.