Dividing Property And Debt
FAMILY/DIVORCE LAW IS STATE LAW. THIS SITE GIVES YOU SOME GENERAL INFORMATION ABOUT WHAT HAPPENS IN FAMILY/DIVORCE CASES IN ILLINOIS. THE INFORMATION HERE IS NOT COMPLETE AND THE LAW IN STATES OTHER THAN ILLINOIS IS DIFFERENT. YOU MAY NEED LEGAL ADVICE.
In a divorce proceeding, courts must separate the property and debts of the parties and assign them to each party in a fair manner. Before the court can separate the property, it must determine whether or not the property is marital or non marital property. Marital property is all property acquired by either spouse during the marriage. Non marital property is the following:
1. Property acquired by gift, legacy or descent:
2. Property acquired in exchange for property acquired by gift, legacy or descent;
3. Property acquired by a spouse in a Judgment of Legal Separation;
4. Property excluded by valid agreement of the parties;
5. Property acquired before the marriage;
6. Any judgment or property obtained by a judgment awarded from one spouse to another spouse;
7. The increase in value of a property acquired by any of the methods mentioned hereinabove;
8. An income from a property acquired by any of the methods mentioned hereinabove.
In dividing marital property, courts do not consider misconduct in the marriage. It will, however, consider the following factors:
1. The contribution of each party to the acquisition, preservation, or increase and/or decrease in the marital or non-marital property, including the contribution of a spouse as homemaker or to the family unit.
2. The dissipation by each party of the non-marital and/or marital property;
3. The value of the property assigned to each spouse.
4. The duration of the marriage;
5. The relevant economic circumstances of each spouse when the division of the property is to become effective, including the desirability of awarding the family home, or the right to live therein for a reasonable period, to the spouse having custody of the children;
6. Any obligations and rights arising out of a prior marriage of either party;
7. Any prenuptial agreements of the parties;
8. The age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties;
9. The custodial provisions for any children;
10. Whether the division is meant to be part of or an addition to maintenance;
11. The reasonable opportunity of each spouse for future acquisition of property and income; and
12. The tax consequences of the property division upon the respective economic circumstances of the parties.
As courts divide all property acquired during the marriage, it can also divide pension and retirement plans as well. Again, non-marital property is the property of the respective spouse and is not subject to equitable division. However, if one party has a significantly higher amount of non-marital property than the other, then the Court can determine the wealthy party’s non-marital property in dividing the marital property.
Debts are divided in the same manner.