Property Division in Divorce
Property and Debt distribution is addressed in 750 ILCS 5/503. This blog is an overview of property disposition in Illinois.
What is property for purposes of divorce in Illinois?
Property encompasses real property usually in the form of a house. It also includes personal property like vehicles, boats, jewelry, furniture and appliances. Other examples are retirement funds, pensions, stocks and bank accounts.
Debts and liabilities also fall under property disposition in 750 ILCS 5/503.
Marital vs. Non-Marital-An Important Distinction
Marital property and debts are distributed in a divorce. Non-marital property and debts are not. The court presumes that property owned by either spouse is marital property. However, a spouse can show the property is non-marital property in a number of ways. Some of the most common examples of non-marital property are property owned before marriage, inheritance, gifts, and property designated non-marital in a pre-nuptial agreement.
Commingling
Sometimes non-marital property can be commingled with marital property and vice versa. Then the court must determine if the property’s identity has changed and distribute it accordingly.
Contribution and Dissipation
It is common in a marriage that a spouse contributes money or efforts to the other spouse’s non-marital property. The spouse may be reimbursed for the contribution. The same is true if a spouse contributes non-marital property to marital property. In both cases, a paper trail is usually necessary to prove contribution.
Alternatively, dissipation occurs when a spouse uses marital property for his/her own benefit. The use must occur during a time when the marriage is breaking down. A spouse can be compensated for the other’s dissipation. Spending money on an affair is a classic example of dissipation.
No Fault-Equitable Distribution
The court will divide the property justly without considering marital misconduct. This is a concept is sometimes difficult to swallow. It means that a spouse’s bad behavior in the marriage will not affect what property he/she gets in the divorce. One exception discussed above is dissipation.
Factors
In summary the court will consider all relevant factors including the following:
- Contribution
- Dissipation
- Value
- Length of marriage
- Economic circumstances of each spouse upon divorce
- Pre-nuptial and post-nuptial agreements
- Age, health, income, occupation
- Obligations and rights from previous marriage
- Custodial provisions of children
- Maintenance
- Future opportunities of a spouse to acquire property and income
- Tax consequences
Contact us if you are facing a divorce where property disposition will be an issue. We have the knowledge and experience to vigorously fight for you.
Content contained on this site is for informational purposes only and should not be considered legal advice. You should consult an attorney of your choosing to discuss your particular case and to obtain legal advice specific to your situation.
