Illinois law requires an equitable property division during a divorce proceeding, and that is not necessarily the same thing as an equal distribution. In many cases, 60-40, 80-20, and maybe even 100-0 may be equitable under the circumstances.
“Equitable” is not an abstract concept in Illinois law. Instead, the judge makes this determination after considering the 12 factors listed in the Illinois Marriage and Dissolution of Marriage Act. In the event that the case settles out of court, and most all of these matters are resolved in this way, the parties must be careful to ensure that the property division is equitable according to the listed factors, or else the judge may not approve the settlement.
Contributions to the Marriage
Each party’s contribution “to the acquisition, preservation, or increase or decrease in value, of the marital or non-marital property” is one of the leading factors in property division. While this factor is usually straightforward, there are some wrinkles that often appear:
- Attorneys’ Fees: In most cases, each party is responsible for paying their respective legal fees. Some spouses spend very large sums of money on lawyers, reasoning that they would rather pay their attorneys than pay their ex-spouses. But attorneys’ fees usually count as dissipation, a concept that’s discussed below.
- Noneconomic Contributions: Illinois law assumes that “caregiver” spouses contribute equally to a marriage along with “breadwinner” spouses. If the two spouses largely divided the caregiver duties, even if one was working and one was not, this factor is not as big. Also, if there were no children, this factor is not as strong.
Debt is divided in much the same way. If a party contributed a lot of debt, that party will most likely pay a lot of bills.
Dissipation (Waste) of Assets
Some special rules apply in Illinois dissipation cases. First, the party claiming dissipation must give formal notice to the other spouse; second, there is a maximum five-year lookback period. Dissipation is sometimes a back-door way to consider fault in the breakup of the marriage, which is not a factor in Chicago cases. For example, if Wife spent $10,000 on gifts for a boyfriend, Husband might be entitled to some additional money.
Value of Non-Marital Property
If one spouse received a large share of non-marital property, that spouse’s marital property share may be reduced. Likewise, such a spouse might also be expected to assume a disproportionate share of the marital debt.
Duration of the Marriage
Long marriages essentially multiply the noneconomic contributions factor. Short marriages have the opposite effect, to deter “gold-digger” spouses.
Spousal Agreements
There is a very strong trend in Illinois law towards accepting any agreements between the parties that are not manifestly one-sided. That includes formal prenuptial agreements as well as informal agreements reached during divorce settlement negotiations.
Future Circumstances
If one spouse is at a disadvantage here, perhaps due to age, overall health, lack of employment skills, or the custody of a disabled child, that spouse sometimes, but not always, receives a disproportionate share of marital property. The assets themselves must be considered, as well, because, for example, sometimes it takes time for a house to sell. Alimony considerations often come into play here, as well.
Rely on Experienced Lawyers
Marital property dispositions must uphold the legal and financial rights of both parties. For a confidential consultation with an experienced family law attorney in Schaumburg, contact Glasgow & Olsson.
(image courtesy of Scott Webb)