Whether you’ve been married for two years or twenty – being legally connected to another person affects most aspects of your life.

The definition of ownership becomes cloudy – ‘what’s mine is yours’ is no longer just a metaphor.

When a marriage comes to an end and it’s time to decide who gets what – there are no longer any obvious lines to draw.

How property should be divided during your divorce is dealt with specifically in Illinois divorce law.

And property in this sense doesn’t just mean your house – although of course that will may be the most valuable asset.

No – what we’re talking about here is all of the marital assets – no matter whose name they’re in.

The pets, the cars, the investments, the art, the heirlooms, the lot.

Before you can even think about what a settlement should look like for you, you need to understand how the law treats property.

First things first – What counts as marital property?

I mentioned above that when we’re talking about property, we’re not just talking about your home but also your belongings.

And the general rule is that everything goes in the ‘pot’ when deciding what gets divided, no matter whose name a possession is legally registered in. When you’re married, the legal title loses its meaning.

But that’s not the whole story.

There is a distinction made in Illinois between ‘marital’ and ‘non-marital’ property.

Marital property refers to any belongings which are considered joint and will be going in the pot, to be divided between you once the final valuations have been calculated.

Non-marital property is property that is not included in the divorce.

There are always exceptions, so it’s advisable to get legal advice if you think some of your property should be excluded from the settlement. But, broadly speaking, non-marital property has been:

  • Acquired as a gift
  • Acquired by inheritance
  • Acquired prior to the marriage and always kept completely separate from the joint finances

What Does ‘Completely Separate’ Actually Mean?

You’ll have noticed that in order for property to be considered ‘non-marital’ property (and therefore excluded from the settlement), it has to have been acquired separately from the marriage and, crucially, kept separate throughout.

This brings us nicely on to a concept known as ‘commingling’ in divorce law.

To understand commingling of finances in simple terms, consider the following:

You have a joint bank account with your spouse, into which both your salaries are paid.

You grabbed a $3 coffee this morning whilst you were running errands and used the joint account to do so.

  • Did the $3 come from the part of the joint account that’s your salary or your spouse’s?
  • Did it come from the monthly interest that you make?
  • Was it actually from that lottery win you had last month?

You see – once certain things are commingled in one account, physical ownership is difficult to prove and it has to be considered joint.

This is just a simple example, however, the same principle applies even if you have an account in your sole name.

If you consistently deposit your paycheck (marital income) into an account with just your name on it that you had prior to the marriage, the whole account may be deemed to be marital.

Post Separation but Pre-Divorce?

Illinois divorce law is clear that commingling continues right up until legal divorce. So if you make purchases or investments after separation but before you are actually legally divorced, it will be considered marital property.

Illinois is an Equitable Division State

OK, now that we’ve established which assets are in or out of the marital pot – we can get to grips with how property division is calculated.

Something you’ll get used to hearing is that Illinois is an equitable division state.

What does that mean for you?

Well, it means that, unlike some States, working out a divorce settlement is not just a case of adding everything together and dividing by two.

Sure, 50/50 splits do happen in Illinois – but never ‘just because’.

A 50/50 split will be awarded where that is the ‘fair’ thing to do (more on that later) and more often than not, but divisions of 55/45 and 60/40 are not uncommon.

Illinois divorce law recognizes that once the divorce is finalized, neither spouse is going to be in exactly the same position as the other.

That is to say – you’re not going to walk away and both earn the same amount of money, be able to raise exactly the same mortgage, or have exactly the same expenses.

So what’s actually taken into account when we’re trying to land on that perfect percentage point?

The final outcome – whether that’s decided between yourselves, with the help of mediation, attorneys or a decision made by the court – will be a settlement that is fair for both parties.

“Fairness is What Justice Really Is”

I know what you’re thinking – nice quote, but how does that affect me and my family?

Fairness can be difficult to define. We all know what it means generally but how does it translate from English into Legalese?

It can be compared to beauty – it’s in the eye of the beholder.

What you consider to be fair is probably going to be different from what your ex considers fair. That in turn will be different from what an impartial stranger considers fair – looking at things objectively.

There are no black and white answers. Fairness is a spectrum.

That can mean that deciding for yourself can feel impossible, and going to court can feel like a huge risk.

Your attorney will be able to advise you about a likely ‘ball-park’.

Divorce attorneys have worked with hundreds if not thousands of couples and this builds up a picture of the likely outcomes if certain things apply.

With that in mind, the law outlines twelve principles which act as a checklist of sorts in deciding where the percentage point will end up.

Twelve Factors for a Fair Divorce

We’re agreed about the idea that achieving fairness sounds like a good idea in principle but that doesn’t exactly make it easy to see what will happen, right?

Well – that’s where these twelve factors come in.

Each factor should be seen as a section of the whole.

Imagine a set of scales. One factor might tip the scales in your favor, but another might weigh in your ex’s – bringing us back to the middle, or 50/50.

Some of the twelve won’t be relevant to you at all, in which case they won’t have any impact on the scales.

Remember, divorce isn’t about ‘winning’ – because of the fairness principle being overriding, it’s actually very unlikely either party will come out with a huge percentage like 90%.

Let’s dive into the factors in more detail.

1. Contribution

The divorce court in Illinois recognizes that raising a family is a full time job in itself.

It’s given equal importance in terms of value added to the family unit as going out to work and earning money. 

It’s therefore never the case that the higher earner gets to keep their monetary contribution to the marriage if the other spouse has either stayed at home completely or taken a lower paid job to fit around caring for the children.

There are some very rare exceptions but these arguments are hardly ever successful.

An extremely high earning spouse could argue that they had the entrepreneurial spirit which allowed them to amass a large amount of wealth.

They try to argue that even if their spouse had continued to work, they would never have had that spark – an ingenious idea for example – they would never have matched their ability to earn. And for that reason their spouse should not be able to share as much in their wealth as this contribution principle allows.

Honestly though – Judges are rarely convinced.

There are so many hypotheticals, it’s hard to pick apart. If you’d stayed single – you might not have had the pep talks, the inspirational late night chats, the pooled resources in the first place.

2.  Dissipation

‘Bad behavior’ usually isn’t raised in relation to financial matters.

That is to say – affairs, hurtful language, bad parenting are not reasons in themselves that someone should receive less of the pot.

Financial bad behavior, though, is a separate matter.

If the marital assets have been reduced on purpose, meaning there is less to go around, it wouldn’t be fair for this to be ignored. Remember that the overall aim is to achieve fairness.

Examples could be gambling or making reckless bad investments.

If possible, the innocent party can be compensated and, ideally, receive something similar to what they would have received had the dissipated assets still existed.

It’s hoped that this factor acts as a deterrent to people being reckless.

3.  Value of Non-Marital Property

If there is a really high value of non-marital property then this can sometimes weigh in the other party’s favor in terms of receiving assets from the marital pot.

Sure, the non-marital property is excluded in that it won’t be signed over to the other party – whether that’s a property, business or something else.

But, if there isn’t enough to go round from the marital assets – allowing each party to buy a house of their own for example – and one party already has a property that has been excluded – that will be taken into account.

4.  Duration of Marriage

The longer that parties have been married, the more difficult it becomes to work out whose assets are whose.

And the more the lower earning party has probably given up – to stay at home with the kids, away from the office.

With shorter marriages, the principle is often that each party should go out with what they came in with.

Unhelpfully, there’s no chart which you can use to categorize how the length of your marriage will affect things.

Generally, it’s accepted that:

  • A short marriage is less than 2 – 3 years
  • A medium term marriage is 3 – 9 / 10 years
  • A long marriage is 10 years +

Consulting an experienced attorney will help clarify matters for your personal circumstances.

5. Economic Circumstances of the Parties

To judge how the circumstances of each party balances against each other – the following questions are considered:

  • What do you earn now and what could you earn in the future?
  • What expenses do you have?
  • Are you in debt and how much would it cost to pay off?
  • How much of a mortgage can you raise?
  • Will you be able to meet your needs without maintenance?

6.  Obligations and Rights from Prior Marriage

It’s really useful to prepare a list of your expenses each month so that a figure can be put on your monthly needs.

Things like utility bills, food, clothing, socializing, kids activities and so on are tallied up.

If someone has been through a divorce financial settlement before, they might have existing obligations – child support or spousal maintenance which will of course increase their monthly expenses and reduce the amount available for other things.

7. Pre-nuptial and post-nuptial agreements

The law surrounding the validity of prenuptial and post-nuptial agreements is very complicated.

If you have such an agreement, expert attorney advice is worth its weight in gold.

Generally the principle is that this legally binding document should be followed to the letter.

But remember we keep coming back to the overall fairness principle and there are certain times where following the agreement would just be unconscionable and thrown out by the judge.

8. Factors Affecting Economic Circumstances

Those questions in factor 5 seem pretty simple to answer. It’s just dealing with the facts and numbers – what do you earn, and so on.

But certain factors affect what that number could be. It should also be taken into account:

  • Ages of parties – how close you are to retirement and likelihood to catch up with pension contributions
  • Disabilities – your ability to work – including physical and mental health
  • Wider family circumstances – relevant in some cases but not all. For example, if you have a wealthy family who the court can infer will look after you and you are not going to leave you struggling.

9. Custody

Ensuring the children’s needs are met is without a doubt the most important factor.

The custody agreement affects the settlement in a couple of ways.

Firstly, of course housing needs to be considered.

The parent that the children are spending much more of their overnight stays with will need a bigger home.

Depending on their ages – it might be that the children can share a room at the other parent’s house if they’re only there for weekends.

The second thing to consider is child support.

Child support is paid by the parent who the children spend least time with. This will need to be taken into account when the monthly expenses are calculated.

A spouse can’t receive alimony if after bills and child support there physically isn’t any money left to pay it.

The law also recognizes the fact that stability is very important for children, particularly at a time where the whole family dynamic has already changed. If possible, the idea of the children remaining in their same home will be explored.

10. Maintenance vs Clean Break

These days, courts will really try hard to achieve a ‘clean break’ where possible.

A clean break means that there is no form of maintenance and whatever the settlement says will happen now is pretty much it.

There’s usually a higher award of the capital to compensate for no ongoing maintenance.

Judges think it’s positive for each party to know where they stand right now, because they can rebuild their life straight away.

If you know you have five years of spousal maintenance and then you’ll be on your own – it’s basically just putting off the inevitable.

That said, if the income of the parties is substantially different, and one of the parties is at a significant disadvantage in regard to earning potential – maintenance may be inevitable – especially if there are insufficient assets for a maintenance buyout.

11. Economic Potential

In most cases, the higher earner also has higher future earning capacity too.

That is to say that, if the other spouse is awarded an additional $100k of the assets, for example, it will take the higher earner much less time to earn that back and to balance back out the scales.

But the benefit of that award to the party who is not going to be able to earn that in a few years will be huge.

It’s relevant here to look at past payslips, bonuses, qualifications and so on.

12. Tax Consequences

Finally, Court’s are asked to consider the agreement as a whole and how the tax bill is going to end up.

If the amount of tax payable would change what each party actually receives in a concrete way then the settlement will need to be looked at again, probably by third party tax experts, to see if there’s a way to avoid this.

…..Other Factors

I know we just said ‘finally’ but there is just one more thing.

Every family is different and there might just be something really important to consider which will affect the fairness of a settlement and that just hasn’t been captured by the factors above.

The ‘and any other’ catch-all allows Judges a degree of flexibility so that the overall settlement can truly reflect everyone’s personal circumstances. Think pushing a square peg through a round hole.

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And there we have it! A whistle-stop tour through what’s relevant and not relevant when deciding how property will be divided during your divorce.

Feeling overwhelmed?

There’s a lot of information to take in and quite frankly, unless you’ve been divorced before, it is brand new to most people.

At the Law Offices of Robert Buchanan, our experienced attorneys have helped hundreds of others in your situation.

We can talk you through divorce settlement examples in Illinois and tailor our advice based on which of the factors above will be relevant to you and your family.

Understanding how to divide property in your divorce is something we help our clients with every single day. A fair settlement is key to your family’s future.

To book a consultation – call (312) 757-4833 or click here