303 W. Main Street, West Dundee, IL 60118
 | 847-428-7725
Call for an Initial Consultation
Evening and Weekend Hours by Appointment
100 Illinois Street, Suite 200, St. Charles, IL 60174
 | 630-200-4882
By Appointment Only
Evening and Weekend Hours by Appointment
West Dundee, IL847-428-7725
St. Charles, IL630-200-4882
Facebook Twitter LinkedIn
Serving Kane, McHenry, DuPage and Cook Counties

How Do Illinois Courts Divide Marital Property During Divorce?

Posted on in Asset Division

Kane County family law attorneysWhen a couple decides to end their marriage through divorce, they have the option of deciding how to divide their assets and wealth on their own. However, when a couple cannot come to an agreement about property division, the courts must intervene. Illinois courts use a system called “equitable distribution” to divide a divorcing couple’s marital estate. If you are considering getting a divorce in Illinois, it is important to understand how asset division decisions are made.

Marital Property and Separate Property

According to Illinois law, only marital, or shared, property is divided in a divorce. Marital property typically includes any property or funds that either spouse accumulated during the marriage. Non-marital property, or separate property, includes assets that a spouse already owned before he or she got married. However, differentiating between separate and marital property is not always this straightforward. Certain gifts and inheritances may also be considered separate property – even if the spouse received the gift or inheritance while he or she was married. Furthermore, separate property can be transformed into marital property when it is commingled with marital property.

For example, if a husband purchases a house before he got married but then he and his wife both contributed to the mortgage, the home will likely be considered marital property during divorce. Similarly, if one spouse receives an inheritance during the marriage but then deposits those funds into a shared account, the inheritance funds transform from separate into marital property. The inheritance would then be subject to division according to equitable distribution.

What is Equitable Distribution?

Some states divide marital property exactly in half, with each spouse receiving 50 percent of the marital estate. However, Illinois takes a more nuanced approach to the division of assets during divorce. Equitable distribution laws dictate that marital property and debts are to be divided equitably, or fairly, but not necessarily evenly. There are a number of factors which are considered by Illinois courts during property division decisions. These include but are not limited to:

  • The current financial circumstances, future earning capacity, age, and health of each spouse;
  • Each spouse’s contribution to the marital estate including noneconomic contributions made as a homemaker or stay-at-home parent;
  • Any legally enforceable prenuptial agreement;
  • The value of each spouse’s non-marital estate;
  • Child custody and spousal maintenance (alimony) provisions;
  • Whether or not either spouse has child support or spousal maintenance obligations from a prior marriage;
  • Tax consequences of property division; and
  • Whether or not marital assets were dissipated, or wasted, during the end of the marriage by either party.

Contact a Geneva Divorce Lawyer

Attorney Benedict Schwarz, II has been practicing law for more than 40 years. He and the rest of the team at the Law Offices of Benedict Schwarz, II P.C. have the knowledge and experience necessary to help you manage all elements of your divorce. To learn more about property division during an Illinois divorce, contact an experienced Kane County family law attorney. Call us today at 847-428-7725 to schedule an initial confidential consultation.



  • Illinois Best Law Firms
  • Super lawyers
  • Attorney Registration and Disciplinary Comission
  • Lawyers Association Program
  • Illinois State Bar Association
  • Kane County Bar Association
  • DuPage Bar Association
  • Martin Dale
  • aacfl
Back to Top