Understanding Asset Division: Is it Always 50/50?

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Understanding Asset Division: Is it Always 50/50?

Divorce involves many legal issues. One of the most significant and controversial in many divorces is that of property division. Upon entering into a marriage, you bring your assets and property; your spouse brings theirs. Then you begin to acquire more together as a married couple. Sometimes these assets are even co-mingled during the marriage, making asset division even more difficult. Suppose you don’t have a pre- or post-nuptial agreement and can’t agree on splitting your assets now. In that case, Illinois law and a family court judge will make the necessary determinations. 

Community Property vs. Equitable Property States

When it comes to the division of assets, some states are community property states, and others are equitable division states. Community property states divide assets in a divorce 50/50. Everything is split equally. For example, suppose you and your spouse own a vehicle that is $50,000, a property that is valued at $200,000, and an investment account with a balance of $250,000. In that case, each party will end up with $250,000 in assets. 

However, Illinois is an equitable property state. Under the law, assets are split equitably, not equally. Some divorce cases are resolved with 70/30 or 60/40 asset splits. Some even assign all marital property to one spouse or the other. It’s best to speak to an experienced Illinois family law lawyer to determine how this might impact your divorce. 

Factors Used to Determine Equitable Property Division

The court’s decision concerning property division is driven by a dozen factors set out in the law.  The law prohibits the court from considering “marital misconduct” when dividing the property and debts. Even if your spouse engaged in multiple affairs and destroyed your marriage relationship, the property will be divided fairly without recognizing the damage done by their actions.

Illinois divorce courts typically consider these 12 factors when determining equitable property division:

  • Each spouse’s contribution to the increase or decrease in marital or non-marital property
  • If either spouse wasted or hid assets
  • The value of the marital and non-marital property assigned to each spouse
  • How long the couple was married
  • The current and immediate future economic circumstances including the employment status and employability of each spouse, if all assets are immediately available, and the plan for child custody
  • If there were prior marriages or if either spouse pays or receives child support or maintenance
  • The existence of any agreements, including pre- and post-nuptial agreements
  • The health, age, station, occupation, and sources of income of each party
  • Custodial provisions for any minor children—for example, if one parent will have the children most of the time, a judge will be more likely to grant them the family home
  • Maintenance—if one spouse will need to pay alimony to the other
  • Future income—Under Illinois law, judges must consider “the reasonable opportunity of each spouse for future acquisition of capital assets and income.”
  • Taxes—judges must also incorporate the tax consequences of the property distribution in any contested divorce when making decisions about asset division

To ensure equitable property division in your divorce, make sure you hire Illinois family law attorneys who are well-versed in Illinois divorce laws as well as the tax implications of property division.

You Can Count on Our Illinois Family Law Attorneys

At Andrea Heckman Law, our Illinois family law lawyers understand how stressful and contentious divorce issues can be, especially those regarding property division. We can put our experience, resources, and skill to work for you, ensuring the best outcome possible. Contact us today to schedule your confidential case review at our office.

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