In community property states, marital property is split 50/50 between divorcing parties. That is not the case in Illinois, which is an equitable division state. Illinois law recognizes that the value of a party’s contribution to the marriage should affect the value of property that the party is entitled to if the marriage ends. Thus, “equitable” is not synonymous with equal.
In fact, Illinois treats marriage almost like a business partnership. More specifically, Illinois considers marriage to be a “joint enterprise,” where each party is expected to contribute. Importantly, however, the law does not penalize one spouse for staying home and taking care of the children. The law recognizes that the contributions made to the marriage by a homemaker can be just as valuable as the contributions made by a breadwinner. The takeaway to remember is that marital property should be divided equitably; in other words, that each party receives his or her fair share.
Determining What Is an Equitable Property Division
Every marriage is different, which is why there is no standard formula for determining who gets what in a divorce. Consequently, what the law considers equitable will vary, although there are certain factors that a court will consider, including:
- How long the marriage lasted;
- The contributions each party made to the marriage, whether as a homemaker, parent and/or breadwinner;
- The value of any non-marital property assigned to each party, such as a bequest received in a will;
- The value of the marital property and any specific property requests (e.g., the value of the marital home and whether one party specifically wants it);
- The child custody arrangement, if the marriage produced children; and
- Whether either party receives child support or alimony (i.e., maintenance) from a previous marriage.
One factor that Illinois courts do not consider when dividing property is marital misconduct. For example, if one party cheated during the marriage, that unfaithfulness will not affect how property is divided in the divorce. That might seem unfair to a party who remained faithful to the marriage, but it is the reality of Illinois divorce law.
Will I Receive or Have to Make Maintenance Payments?
One party might also be entitled to receive maintenance payments. This could be true even if the party received a disproportionate share of the marital property. Ultimately, the court’s decision comes down to future earning capacity and child-rearing responsibilities. The law understands how professional prospects can be affected if a party put his or her career on hold and stayed home with the children.
This does not mean that a former homemaker does not have to work. But, if the party proves his or her contributions as a homemaker – the argument is strengthened if the marriage produced children but weakened if the parties shared child-rearing and homemaking duties equally – the court may order the other party to pay maintenance. Note that the court may alter the initial maintenance amount based on changing economic circumstances or future marital relationships.
Divorce is not an easy process. That is why you need an experienced Illinois divorce attorney by your side. Contact us today for a consultation. We can guide you through the process and ensure that you receive your fair share of marital assets. We can assist those in Chicago and the surrounding area.