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posted on 2/25/18

Illinois law requires judges to equitably divide marital property in divorce cases. Even though “equitably” is not synonymous with “equally,” the judge will probably not even consider awarding one spouse a disproportionate share unless there is substantial evidence that only such an award would be truly equitable. To make this decision, the judge must consider roughly a dozen factors. Here are some of the most prominent ones.

Agreements Between the Spouses

This factor may be the most prominent one because judges nearly always enforce agreements that are reasonably voluntary and reasonably fair.

Few marital property agreements, whether they occur before the marriage or during the marriage, are 100% voluntary. There is almost always an element of duress, up to and including things like “Sign here or the wedding’s off.” In Illinois, such pressure does not make the agreement involuntary. Instead, the duress must be so strong that it effectively deprives the spouse of freedom of choice.

Similarly, an agreement does not have to be 50-50 to be “fair.” There are a number of legitimate reasons a person would agree, albeit reluctantly, to an unequal split, and Illinois judges are usually willing to accept almost all of them.

Economic Circumstances

Legally, the divorce must not be an unfair burden on either Illinois spouse. To that effect, judges sometimes order uneven property distributions to spread out the financial burden. This factor usually favors women because statistically, divorced women rebuild wealth at much slower rates than divorced men.

Child Custody Provisions

Typically, it is in the best interests of small children for them to stay in the family house. Somewhat less typically, the primary conservator needs some financial help to stay in the house. Judges are usually willing to endorse an unequal marital property division to make these things happen.

Value of Property

Although the law does not specify as such, this factor includes both the marital and nonmarital property that each party receives. For example, if Husband has substantial nonmarital property, especially income-producing property, and Wife has none, a judge might give Wife a disproportionate martial property share to equalize the financial burden.

Noneconomic Contributions

The so-called “homemaker allowance” is not as clear-cut as it seems. In many relationships, the husband and wife divide the caretaker duties, albeit on an unequal basis. Furthermore, the homemaker allowance may be almost nil if there were no children. The amount of noneconomic contributions is very much a fact question, so spouses who wish to assert it must have considerable amounts of compelling evidence.

Length of the Marriage

As a general rule of thumb, if the marriage lasted longer than 20 years, a judge may be willing to give a financially needy spouse, which is usually the wife, a disproportionate share. On the other end of the scale, again as a rule of thumb, spouses who have been married less than five years and demand an equal share are often considered “gold-diggers.”

Other prominent property division factors include any dissipation (waste) of marital assets, attorneys’ fees, spousal maintenance awards, and the relative age and health of each spouse.

Contact Assertive Lawyers

A marital property division must be fair to both sides. For a confidential consultation with an experienced family law attorney in Schaumburg, contact Glasgow & Olsson.

(image courtesy of Ryan Holloway)