Question

How is marital property divided in Illinois?

Claudia Gallo

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Claudia Gallo

Located in Chicago, IL
Berger Schatz

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Answer

When spouses are getting divorced in Illinois, they can agree to divide their property any way they want. However, if they cannot agree, Illinois law requires the marital property to be divided equitably between the spouses.

“Marital” property generally includes all property that either or both spouses acquired during the marriage, regardless of who holds the title. By contrast, property a spouse owned before the marriage or received during the marriage as a gift or inheritance is considered “non-marital” and belongs to that spouse individually (as long as it was not mixed or “commingled” with marital property).

After identifying the marital property, the court will divide it equitably. However, “equitably” does not necessarily mean equally. Although a court may conclude that 50/50 is the most equitable – and in practice, the longer the marriage, the more likely the courts will assume an equal split is most equitable – Illinois courts consider a variety factors in deciding what division is most equitable, or fair, e.g., the length of the marriage; each spouse’s contributions to the marriage (financially or as a homemaker); each spouse’s age, health, income-earning potential and/or employability; and the value of each spouse’s non-marital property (if any). Further, either spouse may argue for a greater share of the marital property, based on the specific facts of the marriage – for example, if one spouse gave up career opportunities to raise the parties’ children or has significant health problems that prevent that spouse from earning enough in the future to maintain an adequate lifestyle. 

In sum, although dividing the marital property equally is in many cases also the most equitable way to go, Illinois courts will consider the divorcing spouses’ overall financial situation and other circumstances and in some cases award one spouse a larger slice of the marital pie.

Answered 10/16/2013

Disclaimer: This answer was provided by an attorney selected to Super Lawyers, and is intended to be an educated opinion only. This answer should not be relied upon as legal advice, nor construed as a form of attorney-client relationship.

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