The division of assets during a divorce is a critical aspect of family law, and it often leads to questions about the marital property laws that govern the legal process for people going through a divorce. The phrase “community property” has a variety of different meanings, both in terms of the legal definitions and in colloquial use. Some states in the U.S. apply community property laws to parties going through a divorce. “Community property states” for purposes of this article are those where assets acquired during a marriage are equally between the spouses by law. Illinois is not a community property state, as Illinois follows the “fair and equitable distribution” model. In this article, we will explore the marital property laws in Illinois, clarify how they differ from the law for divorcing spouses in community property states, and provide insights into how the division of assets works during a divorce in the Land of Lincoln compared to other U.S. states.
Marital Property Laws in Illinois
Family law in the U.S. varies by state, and family laws that are on a federal level are few and far between. Illinois, like most states in the U.S., follows the equitable distribution model when it comes to dividing marital property during a divorce. Equitable distribution means that assets acquired during the marriage are not automatically split equally, as they would be in a community property state. Instead, the court aims to divide property fairly and justly, taking into account a variety of factors. The equitable division of assets applies the same way when it comes to the division of debts; the aim is to divide up debts in a manner that is fair, equitable, and just in consideration of the circumstances of the parities.
Understanding Marital Property
Before diving into the specifics of Illinois marital property laws, it’s essential to differentiate between two categories of property: marital and separate. Separate property is frequently referred to as “Non-marital property” and sometimes referred to as “Pre-marital property.”
- Marital Property: This includes assets and debts acquired during the marriage by either spouse. The Illinois Marriage and Dissolution of Marriage Act provides that all assets that are acquired during the course of the marriage are presumed to be marital assets. Similarly, the Illinois Marriage and Dissolution of Marriage Act provides that all debts accrued during the course of the marriage are presumed to be marital debts. Illinois family law encompasses a wide variety of “marital assets,” such as real estate, the family home, income, investments, retirement accounts, vehicles, and personal property. In Illinois, marital property is subject to equitable distribution during a divorce.
- Separate Property: Separate property comprises assets and debts that are acquired before the marriage, as well as gifts and inheritances received by one spouse during the marriage. Separate property generally remains with the original owner and is not divided in the divorce. Separate property is commonly referred to as non-marital property in a divorce, and it is important to note that assets subject to a prenuptial agreement are also maintained as separate property. However, assets that would otherwise be considered separate property from the marital estate become marital property when the non-marital property becomes co-mingled with marital property to such an extent that the non-marital property loses its own independent identity, thus defeating the non-marital nature of the asset.
Fair and Equitable Distribution in Illinois
The core principle of equitable distribution in Illinois is fairness. Illinois law requires the court to follow principles of equity. While assets may not be divided equally between spouses, the court’s goal is to ensure that the division is equitable and just in consideration of all relevant factors. To achieve this, the court can consider a variety of factors based on the individual circumstances of each case, which includes but is not limited to the following:
- Contributions to the Marriage: The court evaluates each spouse’s contributions to the marriage, including financial contributions, homemaking, childcare, and support. Note that Illinois family courts generally operate on the presumption that each party’s contribution to the marriage is equal, whether that contribution was a momentary contribution or a non-monetary contribution. Illinois law does not allow divorcing spouses to claim a loss of consortium.
- Duration of the Marriage: The length of the marriage is a crucial factor in the majority of Illinois divorce cases. Longer marriages tend to result in a more balanced distribution of assets. Short term marriages make disproportionate divisions of assets more justifiable to Illinois family courts.
- Financial Situation and Economic Strength: The financial situation of each spouse is considered, including their income, financial needs, earning potential, capacity for the improvement of each party’s ability to earn income, age, disability, and each spouse’s respective station in life.
- Non-Marital Property: The court distinguishes between marital and non-marital property. Non-marital property is generally not subject to division. Non-marital property is not as common as marital property, especially for divorces involving long-term marriages. The presumption under Illinois family law that all property acquired during the marriage is presumed to be marital property is known as a “rebuttable presumption,” which means that each divorcing spouse can present evidence to overcome the presumption that the asset is “marital property.”
- Child Custody and Support: If children are involved, the court may take into account child custody arrangements and the financial support required for their well-being, especially if their are special needs. This includes but is not limited to living expenses and supplemental expenses incurred on behalf of minor children.
- Wasteful Dissipation: If one spouse has dissipated marital assets (wasted or misused funds, spent outside of the course of day to day living or day to day business), the court may consider this in the division of marital assets in Illinois divorce cases.
It’s important to note that equitable distribution in Illinois does not necessarily result in a 50/50 split. The court’s goal is to create a fair outcome based on the specific circumstances of the marriage and the parties involved.
Comparing Illinois to Community Property States
Now that we’ve explored the marital property laws in Illinois, let’s compare them to the laws in community property states.
Community Property States: In community property states (examples include California, Arizona, and Nevada), assets and debts acquired during the marriage are generally considered community property, meaning they are owned equally by both spouses. During divorce, community property is divided 50/50, offering a more straightforward distribution of assets.
Key Differences:
- Division Approach: The primary difference is the approach to dividing marital property. Illinois employs equitable distribution, while community property states follow a strict 50/50 division.
- Complexity: Equitable distribution allows for more flexibility in assessing the specific needs and contributions of each spouse, but it can be more complex than the community property system, which is relatively straightforward. Under Illinois law, the rationale for division of property between divorcing spouses is limitless.
- Separate Property: Community property states may have different rules for separate property. However, assets acquired before the marriage or via gift or inheritance generally remain separate from the “marital estate.”
- Court’s Discretion: In equitable distribution states like Illinois, the court has significant discretion in determining the division of property. The court in community property states adheres more strictly to the 50/50 rule. This makes community property states more predictable when it comes to the division of property in divorce cases.
Challenges to the “Fair and Equitable Distribution” Model
Illinois family law follows a fair and equitable distribution model. This allows for Illinois family law to be more flexible and adaptable to unique circumstances that are specific to each case, the model can also present challenges and complexities in the divorce process. Here are some of the potential issues that may arise:
- Appraisals and Valuations: Determining the value of assets and property can be contentious, especially when spouses disagree on their worth. Often, the parties to a divorce case will be ordered by the court to obtain appraisals if the parties do not obtain appraisals independently.
- Hidden Assets: One spouse may attempt to conceal assets to influence the division unfairly. This can complicate the process and make for some very difficult proof problems.
- Emotional Factors: The divorce process can be emotionally charged, leading to disputes over assets that extend beyond their monetary value.
- Subjectivity: Equitable distribution depends on the judge’s discretion, which can sometimes lead to subjective decisions and disputes without each party having independent valuation experts to be called as witnesses in the divorce case.
Illinois is not a community property state, but many of the same problems above afflict community property states as well. Illinois does not follow the 50/50 model, pursuant to Illinois family law. The Illinois Marriage and Dissolution of Marriage Act follows the fair and equitable distribution model, which aims to divide marital property fairly and justly based on the circumstances specific to the marriage. While the fair and equitable distribution model provides flexibility and considers a sweeping breadth of factors, it does not guarantee an equal 50/50 division of assets. However, it is not uncommon for Illinois divorce judges to conclude that the fairest division of assets is an equal division of assets and still order 50/50 division of assets despite an equal division of assets not being required under Illinois law. Understanding the marital property laws in your state is crucial if you are going through a divorce or planning for your financial future. Consulting with a qualified family law attorney can help you navigate the complexities of property division and ensure your rights and interests are protected during the process.
Scheduling a Consultation with an Attorney for Your Marital Property Matter
Call or text Pro Legal Care LLC today at (815) 200-8802 to schedule an initial consultation for your case. During your consultation, you’ll go over the history of your legal matter with Attorney Zach Townsend and he’ll help you put together a new path forward.
