Illinois law declares that marital property must be divided “equitably” in a divorce, which is not necessarily the same thing as an “equal” division. How does such a distribution work, in practical terms?
Nearly all civil cases – upwards of 95%, in most jurisdictions – are settled out of court. In divorce actions, it is not unheard of for the parties’ only contact with the judge to occur on the day the divorce decree is signed. Settlement negotiations generally take place either by informal and occasional discussions between the parties, or between their attorneys, or at a formal mediation session.
Such negotiations do not always take place. Many times, a traumatic marital event, such as domestic violence or an adulterous affair, has created so much anger, mistrust, and fear that at least one spouse has dug in for a fight and will not agree to anything. In these cases, a judge will divide marital property based on the evidence presented. Even if a preliminary settlement is reached, it must pass muster under the law, or the judge will send the parties back to the drawing board.
Spousal Support
Prior to 2015, it was not unusual to see lifetime alimony awards based on little more than a presumption that such an award was appropriate based on the general circumstances. But on January 1 of last year, significant changes took effect in this area, and spousal maintenance awards are now much more scrutinized in terms of their necessity, amount, and duration.
To obtain alimony, the requesting party must first establish that it is a necessary component of the property division. There are a number of relevant factors, including:
- The duration of the marriage,
- Relative economic circumstances of the parties,
- Custody of minor children, and
- Relative age and health of the spouses.
Fault in the breakup of the marriage is not normally considered in this area.
In most cases, the amount and duration of payments is determined by a mathematical formula that considers the length of the marriage, 30% of the payor spouse’s income, and 20% of the payee spouse’s income.
Property Division
As a general rule, marital property is anything acquired during the marriage, whether it has a tangible or intangible value. Property division is actually a four-step process.
- Identify: Property is located during the discovery process, which is sometimes done by agreement, sometimes completely adversarial, and sometimes a combination of both.
- Classify: Commingling is often an issue; for example, Wife may use funds from her paycheck (marital property) to make improvements on a rental house she owned prior to the marriage (non-marital property).
- Value: In addition to a financial value, many items have an emotional value, and both aspects must be properly considered.
- Distribute: To achieve balance, many divorce orders include offsets; for example, Husband may give up his portion of the house for outright ownership of a retirement account.
The factors used in distributing property are similar to the ones listed above, but in addition to marital fault, the court may consider dissipation (waste) of assets and a few other items.
Assertive Family Law Attorneys
For a confidential consultation with Schaumburg attorneys who stand up for your legal and financial rights in property division matters, contact Glasgow Beattie, Olsson. We routinely handle cases in Cook County and nearby jurisdictions.