Factors That Determine How Property Is Divided in a Divorce

 Posted on June 08, 2016 in Property Division

Kane County family law attorneyThe prospect of undoing a marriage is not only emotionally overwhelming, but can involve complicated logistical scenarios as well. A common concern among those seeking a divorce from their spouse is how property will be divided.

Marital and Non-Marital Assets

For the purposes of divorce, there are two general types of property. Assets acquired during the marriage are generally considered marital assets while assets purchased or acquired before the marriage are non-marital assets. For example, marital property would include a car the couple purchased together, the marital home, and joint banking accounts, along with regular income each spouse earned during the marriage. Only these shared marital assets will be divided during a divorce. Non-marital assets will remain the property of the original owner.

There are some special circumstances in which property or assets acquired during a marriage may not be considered part of the marital estate. For example, if you owned a vehicle prior to getting married and then sold that vehicle during the marriage, the profits from the sale are not considered marital and you are entitled to keep them. Gifts you received from a spouse before the marriage, such as engagement rings, are also not considered marital assets. Furthermore, any inheritance you received from a loved one during your marriage is considered a non-marital asset. You will not be required to divide these assets. 

Equitable Distribution

Illinois is an equitable distribution state which means that marital property might not be split 50/50. A judge will consider many factors and arrive at a property division arrangement that is equitable, or fair for both parties. These factors include, but are not limited to:

  • Which party will retain primary responsibilities for the couple’s children;
  • The income each party earns;
  • How shared marital assets were acquired and cared for;
  • How long the marriage lasted;
  • The age, health, and employability of both parties;
  • Nonfinancial contributions made by a spouse as a homemaker or stay-at-home parent.

Dividing Large Assets

Allocating certain assets are fairly easy; you may get a particular piece of furniture while your spouse receives the vehicle he or she routinely drives. Others are much larger and not so simple. If you and your spouse own a home or other property that is difficult to split between you, there several options for dividing the asset. One party may buy out the other party’s ownership of the home and retain it as their property. Alternatively, the court could order that maintenance costs for the home be shared while the primary residential parent continues to live there until the children graduate high school, for example.  If neither party wants to continue living in the home or is not able to afford the payments, it may be sold and the proceeds split between the two parties. 

Dividing property during a divorce can be complicated and overwhelming, but you do not have to do it alone. Contact an experienced family law attorney in Kane County for help with your unique situation. Call 630-232-9700 to schedule a confidential consultation with The Law Offices of Douglas B. Warlick & Associates today.



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