Division of Property upon Divorce
When a couple is married, they will likely obtain a great deal of personal and real property during the course of their marriage, particularly when they are married for a significant period of time. Therefore, when a couple decides to divorce, how that property is distributed becomes a critical issue.
Under Illinois law, divorcing parties may enter into a written or oral agreement containing provisions for the disposition of property owned by either party. This agreement is binding on the court unless it is found to be unconscionable. In determining whether an agreement is unconscionable, the court will consider the economic circumstances of the parties and any other relevant evidence. If the court finds that the agreement is unconscionable, it may request the parties to submit a revised plan or agreement.
Disposition of Property
If the parties cannot agree on the division of property, the court will have to become involved. The first step is to determine what property is marital property. Marital property is considered all property acquired by either party subsequent to the marriage, except for certain property that is deemed non-marital, which includes:
- Property obtained by gift, descent or legacy;
- Property obtained in exchange for property obtained before the marriage or in exchange for property obtained by gift;
- Property obtained by a spouse after a divorce;
- Property excluded by agreement of the spouses;
- Any property acquired by judgment awarded to a spouse;
- Property obtained prior to the marriage;
- The increase in the value of property acquired by any of the means listed above; and
- Income from property acquired by any means listed above if the income is not attributable to the single effort of a spouse.
Illinois is an equitable division of property state; therefore, property is divided as justly or fairly as possible. As a result, the court divides the property “in just proportions considering all relevant factors.” The court values the property as of the date of the trial or as close to that date as possible. It is important to note that the court does not consider marital misconduct in dividing the property. The most common example of marital misconduct is adultery.
Knowledgeable Family Law Attorneys
It is very likely you obtained property during your marriage without ever thinking about the possibility of one day having to divide it. If you are contemplating beginning divorce proceedings, please contact our knowledgeable Illinois family law attorneys. We have the experience necessary to help you with all aspects of a divorce, including determining how your property is distributed. If you have any questions related to family law issues, please contact MKFM Law today at 630-665-7300.