Dividing up marital property equitably can be one of the most stressful parts of a divorce. Depending on the length of the marriage, couples may amass quite a bit of shared property that will need to be split before the divorce is finalized. Of course, the first step to the equitable division of marital property is determining what exactly is - and is not - marital property. While it is true that most things a married couple has are considered marital property, Illinois law carves out a few exceptions. Most married individuals own some individual property, whether they realize it or not. 

If you are struggling with the division of property in your divorce, you should contact a qualified divorce attorney as soon as you can. Divorces can be highly contentious proceedings, and some will try to take advantage of unrepresented parties. Always consult an attorney before agreeing to give any property that you believe is rightfully yours. 

What is Non-Marital Property in Illinois? 

Non-marital property, or individual property, is not subject to equitable distribution during a divorce. It remains with the spouse it solely belongs to. Non-marital property includes: 

Anyone who has been through a divorce or is currently in the middle of divorce proceedings would likely agree that finalizing a divorce can be a complicated and contentious feat. When substantial assets and high net worth are involved, the complexities and conflicting opinions can increase exponentially. If you are facing a high-asset divorce in Illinois, there are steps you can take to make the process as smooth as possible and help you to achieve a successful settlement in the end.

Identify and Organize All Assets

While building a comprehensive list of all of your assets may not be the first thing that comes to mind at the onset of a divorce, identifying and organizing all assets as soon as possible is incredibly important. It is also important that you are completely transparent when creating this list. If it is discovered that assets are being hidden, it can have a detrimental impact on the determined settlement that one receives. This includes attempting to liquidate, devalue, or transfer ownership of any assets. 

Take the time to build an inventory of your property ahead of time. It is also recommended to make copies of documents and records as these may be unavailable when divorce proceedings begin. 

In the state of Illinois, in the event of a divorce, the equitable distribution law divides the assets fairly, not equally. However, when individuals desire to manage specific assets or property in a particular manner, they may choose to pursue one of the two available nuptial agreements. In the event of a divorce, both pre-and post-nuptial agreements establish how to properly handle assets and property. While pre-nuptial agreements are formed prior to marriage, post-nuptial agreements are initiated during the marriage. If having such direct control over your assets provides you peace of mind, you may want to correspond with a family law attorney to better understand your options.

When Can Post-Nuptial Agreements Be Advantageous?

If the individuals are already married, it is too late for them to form a pre-nuptial agreement. If they still wish to seek this type of asset control during the marriage, they would enter into a post-nuptial agreement. Post-nuptial agreements can be valuable and provide benefits to the couple whether they face divorce or stay together. Oftentimes, the couple may have originally wanted a pre-nuptial agreement but waited too long to make this feasible. 

Some examples of how a post-nuptial agreement could benefit a married couple include:

Parents who decide to end their marriage and get a divorce will need to make decisions about a variety of issues related to child custody. In many cases, parents may be able to agree on how to handle these issues either by negotiating a settlement or participating in mediation. If an agreement cannot be reached, litigation may be necessary, and the final decisions will be made by the judge in their case. Matters related to child custody will be addressed in a document called a parenting plan that will be incorporated into the couple’s final divorce decree.

Terms of a Parenting Plan

The two main components of child custody that will be addressed in a parenting plan are the allocation of parental responsibilities and parenting time. Parental responsibilities, which are commonly known as legal custody, refer to the parents’ rights to make decisions for their children. A parenting plan will describe whether parents will share some or all of the areas of responsibility equally or whether one parent will have primary or sole responsibility in certain areas. The types of responsibility that will be addressed include decisions related to children’s healthcare and medical treatment, educational matters, choice of religion, and children’s participation in religious services and training, and extracurricular activities.

Parenting time, commonly known as physical custody, refers to when children will be spending time with each parent and staying in each parent’s home. A parenting plan will specify a schedule for regular, daily parenting time, detailing the days and times when children will be in the care of each parent. Parenting time schedules will also need to be created for days that fall outside of the regular schedule, such as summer vacations, spring break, school breaks during the winter holidays, other major holidays, and special days such as children’s or parents’ birthdays, providing a full understanding of which parent will care for children on these days.

Most people are familiar with the concept of alimony, in which one spouse makes payments to the other after a couple gets a divorce. However, the purpose of these types of payments is often misunderstood. Spousal support, which is known as spousal maintenance in Illinois, is not meant to punish or reward either spouse. In fact, the reason a couple’s marriage ended will usually not be considered when determining whether maintenance is appropriate. Instead, spousal maintenance is meant to address any disparity between the parties’ incomes and financial resources. It can help a spouse who earns a lower income maintain their accustomed standard of living and begin taking steps to support themselves.

Factors Considered When Determining Eligibility for Spousal Maintenance

Spousal maintenance will not be awarded in every divorce, and it is usually only appropriate if one party requires financial support to be able to meet their ongoing needs. Spouses may agree that spousal maintenance will be paid as part of their divorce settlement, or a prenuptial agreement may specify that spousal support will or will not be awarded. If the spouses disagree about whether spousal support would be appropriate, the judge in their case will decide whether to award maintenance after considering factors such as:

• The income earned by each spouse, the marital property distributed to each party, and any separate property owned by either spouse
• The parties’ ongoing financial needs
• The standard of living the parties were accustomed to during their marriage
• Each spouse’s realistic ability to earn an income both currently and in the future
• Issues that affect each spouse’s employment and financial situation, including their age, health, education, skills, and liabilities
• Whether the spouse who is seeking financial support has experienced any impairment to their ability to earn an income due to focusing on household or domestic responsibilities, including delaying education or career opportunities in favor of providing care for the couple’s children
• Whether the spouse who is seeking maintenance will need time to receive education or training in order to pursue employment and become self-supporting
• Whether the spouse who is seeking spousal support assisted with the other party’s education, training, or career advancement, including through financial assistance or performing services.
• Whether the party who is being asked to pay spousal support has experienced any impairment of their ability to earn an income at present or in the future
• Whether decisions about child custody will have any effect on either party’s ability to pursue or maintain employment
• Any other relevant factors that are just and equitable

Contact Our Geneva Spousal Maintenance Attorney

Whether you believe that you should receive spousal support or do not believe that you should be required to pay support to your former spouse, the Law Offices of Douglas B. Warlick & Associates can advise you on how the law applies to your case. With more than 40 years of experience in family law cases, Attorney Warlick can provide you with representation and make sure that spousal maintenance and other issues are addressed correctly during your divorce. To schedule a consultation and learn how we can help you resolve your legal issues, contact our Kane County spousal support lawyer at 630-232-9700.