The Difference Between Equal and Equitable Division of Property

The Difference Between Equal and Equitable Division of PropertyThe words “equal” and “equitable” sound similar enough that you could use them interchangeably, but there is an important difference between the words when it comes to divorce. According to Illinois law, the division of property during a divorce must be equitable but not necessarily equal. An equal division of property focuses on each spouse getting half of the marital property, while an equitable division of property is more concerned with each spouse getting a fair share.

Equitable Division vs. Community Property

Nine states, including Wisconsin, follow the community property law that assumes that each spouse equally owns any assets and debts gained during the marriage and must equally divide them during a divorce. The rest of the states use equitable distribution, which means that the marital properties will be divided based on what is fair for each side. If spouses cannot determine an equitable division on their own, a divorce court will decide for them.

Advantages of Equitable Distribution

Why do most states use equitable distribution instead of equal distribution? In many cases, dividing the marital assets equally would not be a fair arrangement because the spouses are not financially equal:

  • One spouse may have valuable assets that are not part of the marital property;
  • Some marital properties are more vital to one spouse, such as owning a business; and
  • The spouse who will be the primary parent may need certain properties, such as the marital home.

Spouses can still agree to an equal distribution of marital properties if they believe it is fair. However, being bound by law to equally distributing marital properties can make the process needlessly complicated and result in unfair divorce agreements. Equitable distribution allows courts to use their judgment when dividing marital properties. Giving one spouse a greater share of the marital properties may actually put the spouses on equal financial footing after the divorce.

Contact a Geneva Divorce Lawyer

The equitable distribution law is to your advantage if you have fewer nonmarital assets than your spouse. To assure that your divorce is equitable, you need to accurately assess the value of your marital properties, as well as identify the nonmarital properties that your spouse owns. You must also consider whether certain properties have the potential to increase in value, which could give your spouse an advantage. A Kane County divorce attorney at Geneva Family Lawyers understands how to evaluate properties in a marriage to make sure that you reach an equitable agreement. To schedule a free consultation, call 331-588-6611.


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