When 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.

When a couple decides to divorce, many issues need to be addressed, especially if they have been married for a long time. One such issue is how to divide marital property and assets. One of the most common questions in a divorce is “Who gets the house?” Illinois is an “equitable distribution” state, not a community property state. This means marital property, including debt, does not need to be divided “equally.” Instead, the law requires property to be divided "equitably." Your house (or houses if you own more than one) is probably the largest asset you and your spouse own, so it is imperative to divide it in a way that is fair to both spouses in a divorce. 

Ways to Split Real Estate in a Divorce

Couples who are divorcing should keep in mind the sale of a home will likely have tax implications and therefore should be factored into the decision-making process. They should also consider what is in the best interest of the children if they have kids.

Options exist for division of real estate such as a house. Here are some clever tips for splitting a home or homes when going through a divorce:

When two people get married, they pledge to spend the rest of their lives together. Sometimes it does not work out that way, and they want to get a divorce. Couples who enter into divorce proceedings may worry they will be left with nothing. If that is a concern you have prior to getting married, it may be beneficial to craft a prenuptial agreement.

The need for a prenup can vary depending on the couple and the state in which you live. Illinois law divides property equitably, which does not necessarily mean equally. Equitable division of property looks at numerous factors to determine what is fair to both parties. A prenup can be used as one of the factors which determines how the court will divide property and debts during a divorce in Illinois.

Each couple’s situation is different, so it is a good idea to take stock of your finances if you are considering a prenup agreement. You will need that information for the agreement anyway, and it can be a helpful exercise to fully understand the breadth of your financial situation.

If you are considering entering into divorce proceedings, you may be wondering what will happen to the property you own. Each state has its own laws that determine how to divide property in a divorce. In Illinois, the law states that property must be divided in an equitable, but not necessarily equal, manner. Before the court can make the decision regarding how to divide the property, the property first needs to be divided into two categories: marital property and non-marital property. 

Marital Vs. Non-Marital Property

Marital property includes any property or debts that were acquired during the course of the marriage by either spouse. The types of property that are considered marital assets may vary widely. The scope of what is and is not marital property does not stop at large purchases; it can be any type of physical property or financial assets that the couple has in their home or elsewhere. However, some assets may not be considered marital property even if they were acquired during the marriage, such as if the item was a gift or inheritance. 

Most non-marital property consists of assets that were acquired by either spouse before the marriage. However, non-marital property can also include property received in exchange for other property which was acquired before the marriage, property acquired by a spouse after a legal separation, or property not included as marital property because of a legal agreement between the spouses (such as a prenuptial agreement).