When a couple decides that they no longer wish to stay married, it can be difficult to determine how the marital property will be divided between the two. If you are facing a divorce in Illinois, you likely have many questions that leave you wondering, “how is property divided in Illinois?”
Marital property is divided 50/50 in certain states. However, in Illinois, the courts will split marital assets equitably rather than equally. In other words, the court will give each spouse what they deserve rather than just splitting the assets between the two. Sometimes, this will mean a 50/50 split, but other times, it may look like 60/40. For assistance in discovering how your marital assets may be divided, consult with a Naperville property division attorney.
Property, in this instance, refers to any debt or asset owned by one or both spouses. All property is classified differently depending on several factors, such as the timeframe in which it was bought or obtained, as well as whether it has been used or how it has been used.
A marital asset is one that is obtained during the marriage. If the couple bought a house together during their marriage and lived in that house together during the marriage, that is considered a marital asset. Debts incurred during the marriage also fall into this category regardless of which spouse is responsible for the debt.
Non-marital property is considered property belonging to one spouse that was likely obtained prior to the marriage. If a car, for example, was owned by one spouse prior to the marriage, it may be considered non-marital property. Other examples include inherited property, gifts a spouse had received from someone other than the other spouse, and even civil claim damages.
Non-marital assets can become owned by both spouses during the duration of the marriage. When that happens, a non-marital asset then becomes a marital asset. Even if both spouses have two separate bank accounts, if a savings account is opened during their marriage, that is another marital asset.
Other assets that were owned before marriage and are only in one spouse’s name can still become marital assets. For example, if one spouse has a retirement account in their name, but both spouses add money to that account, it becomes a marital asset. However, if the account was not added to during the marriage, it remains one spouse’s separate property.
If you are unsure about how your property may be divided in your divorce, a property division lawyer can help identify what the division of your assets may look like.
During the duration of your marriage, all property purchased or obtained is added to your total marital assets. Anything that is considered marital property is divisible amongst the couple in a divorce.
Any property that has been commingled may also be subject to being split in the divorce. If a prenuptial agreement has been created, there may be stipulations concerning how certain property will be distributed. Anything that is considered marital property is subject to equitable distribution.
The most effective way to protect your assets from becoming marital property is to prevent the commingling of assets from taking place. Don't allow your spouse access to your accounts or add funds to those accounts during your marriage. Any contributions during the marriage are considered marital property. It is also wise to keep tabs on all deposits and withdrawals of all accounts.
Another way to protect assets from becoming marital property is to create a prenuptial agreement. This agreement stipulates exactly what assets will be kept for you and what will be kept for your spouse, respectively, if your marriage ends in divorce. This agreement is signed prior to the marriage taking place. If you wish to do this after the marriage has occurred, you and your spouse may be able to sign a postnuptial agreement.
A: Assets are divided in Illinois equitably, as Illinois is an equitable division state. The court will determine how to split the assets depending on what is fair for both spouses based on property division factors according to the Illinois state statutes. The court will also look at several factors to determine how to split these assets, such as each spouse’s contribution to accounts or the value of the marital property.
A: Separate bank accounts can be considered marital property in Illinois, depending on the circumstances. For example, if an account is opened during the marriage, even if only in one person’s name, then it is a marital asset.
Checking accounts, savings accounts, investment accounts, business accounts, and retirement accounts could all be considered marital property if they are opened or contributed to during the marriage.
A: There are several factors that the court will consider when deciding on how to split marital property. Some of these factors include any prenuptial agreement, how long the marriage lasted, each party’s age, their current health, spousal support, and more. The outcome seeks to create an equitable distribution. If, for example, one spouse is granted the family home, the other spouse may receive other assets that reach an equitable value.
A: Yes, a 401(k) is usually split in divorce in Illinois. This is the case even if the account was owned before the couple was married. If the retirement fund was added to during the length of the marriage, it is considered marital property and will be divided between the couple. Regardless of each spouse's financial contributions, both spouses are entitled to equitable distribution, as they both contributed to the financial success of the family.
If a couple decides to divorce, it can be difficult to determine how property will be divided. The divorce process is even more challenging to handle without the assistance of a lawyer, as they can help determine how property can be split. If you live in Illinois and are facing a divorce, consult with a property division attorney. Contact Vahey Law & Mediation, LLC, for assistance with your case.
