In terms of property division, Illinois is an equitable distribution state. In this context, “equitable” is not always synonymous with “equal.” Judges must divide property in such a way that the divorce is not an unfair burden on either party. To effectuate such a division, Illinois law sets out a number of different factors to consider.
Schaumburg family law attorneys must be mindful of these factors both in divorce trials and during settlement negotiations. Generally, Cook County judges will not approve property settlements unless they equitably divide marital property and they are consistent with the factors listed below.
1) Tax Consequences
This factor changed significantly in January 2019. Before alimony payments were tax-deductible and alimony receipts were tax-reportable. Now, payments are not deductible and receipts are not reportable. Other tax consequences include property tax payments and stock-to-cash conversion taxes.
2) Future Income
If one spouse stayed home to take care of children, this person probably has a lower current salary and a lower future income potential. That is assuming the spouses have relatively the same education, experience, and overall health.
3) Spousal Maintenance
Alimony affects the property division. Spouses who receive substantial support payments do not need as much property, at least in most cases. The opposite is also true. If a spouse receives little alimony, a disproportionately large property division might be in order.
4) Parental Responsibility
It is usually in the best interests of the children for them to remain in the family home. So, the residential parent often keeps the title to the house. The residential parent might also need some help making mortgage and tax payments, at least for a little while.
5) Agreements Between the Spouses
This factor may be the most important one. As mentioned, judges almost always approve such agreements as long as they are not manifestly one-sided, and both spouses had roughly equal bargaining power.
6) Relative Economic Status
Younger, better-educated spouses with more job experience usually have more earning power than older, poorly educated spouses with little job experience. If earning power is uneven, the property division should compensate for this deficiency.
7) Duration of the Marriage
In long marriages, this factor multiples the so-called homemaker factor, which is discussed below. In shorter marriages, this factor mitigates the gold-digger effect.
8) Overall Value of Property Assigned
If a spouse receives a substantial nonmarital property award, that spouse arguably should receive a lower share of marital property.
9) Dissipation (Waste) of Assets
Normally, fault in the breakup of the marriage is not relevant in property division matters. But this factor is a back door for adultery. For example, if Husband spent $10,000 of marital funds in gifts for a girlfriend, Wife may be entitled to a share of that money.
10) Economic and Noneconomic Contributions
Financial contributions are usually fairly easy to establish. Non-economic contributions are more subjective. If one spouse gave up career advancement to stay home with children, this factor is significant. If, as is often the case, the two spouses divided caregiver responsibilities, this factor may not be as important.
Work with a Dedicated Lawyer
A divorce must equitably divide the marital property according to a number of factors. For a free consultation with an experienced family law attorney in Chicago, contact the Delaney Heckman We routinely handle matters in Cook County and nearby jurisdictions.