The Most Influential Property Division Factors During Divorce

IL divorce lawyerWhen a marriage ends in divorce, it involves a series of difficult decisions, not the least of which are the decisions regarding property division. It would be more comfortable and less time consuming if a couple were able to discuss the matter amicably. However, many couples cannot agree when it comes to dividing property, assets, and debts. If you are unable to reach an agreement, a judge will do so for you. A judge will make their decision after weighing the following factors:

Marital vs. Non-Marital Property

Any property acquired during the tenure of the marriage is considered marital property. Illinois courts do not have jurisdiction over the non-marital property, which is any property earned or otherwise accumulated before the union began. After determining marital property, the judge then divides it into what is considered “fair and equitable.” Fair and equitable is not to say that the property splits equally, but rather by what is a “just proportion.” Prime examples of property not included in marital property are:

  • Property owned by a spouse before the marriage,
  • Anything received by one spouse by gift or inheritance, and
  • Restrictions based on a prenuptial or postnuptial agreement.

The Family Home

One of the most significant purchases a couple makes together is the family home. Since both parties are often significantly invested either through time, money, or improvements, it is complicated to determine a fair and equitable split. Common outcomes include:

  • The house is sold, and both parties split the sales profits, or
  • One spouse “buys out” the other spouses share of the home.

Accumulated Debt

Families often go into divorce with a substantial amount of debt accumulated, from student loans, credit cards, car notes, and medical bills. Although neither party would prefer to accept responsibility, this, too, must be split fair and equitably. However, it is important to note that if their name is on the account, a creditor will still attempt to collect payment and their credit is still at risk should the ex-spouse fail to make a payment.


If you owned business during the marriage, it is a good idea to hire a business appraiser during the divorce process. As with the family home, one spouse has the opportunity to “buy-out” the other spouse to own the business in its entirety. In other cases, spouses go on to become business partners for the company, with an option to revisit a potential buy-out in the future.

Contact a DuPage County Attorney

It is important to review every facet of property division settlement during the divorce process to verify that property, assets, and debts are divided correctly, while also taking account the necessary resources in the future. If you are unable to resolve property division issues, the experienced attorneys at the Law Office of Martoccio & Martoccio can help you understand the legislation and advocate for you and your family’s interests. Call our office at 630-920-8855 to schedule your free, initial consultation with a Hinsdale property division lawyer today.


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