Many couples think that literally every asset and divorce is split perfectly equally during an Illinois divorce. While equal is the general starting point, not everything is divided equally in ever instance. Instead, Illinois focuses on the equitable distribution of assets and debts. This is based on fairness rather than a strict equalization. Knowing how this nuance might impact your case is important.
At Kulerski & Cornelison, our team serves families DuPage and Cook counties. We help clients through their divorce, the division of their assets, and all other family law aspects surrounding the end of their marriage. We’re here to help.
Illinois Uses Equitable Distribution
Under the Illinois Marriage and Dissolution of Marriage Act (IMDMA), courts divide marital property based on what is fair and just under the circumstances. The result could be a true 50/50 split, or it may be some other percentage.
Equitable distribution gives judges flexibility to account for each spouse’s financial situation, contributions, and future needs. This approach is designed to produce a balanced outcome rather than a rigid mathematical split.
What Counts as Marital Property?
Before anything can be divided, the court must determine what is marital property and what is non-marital property.
Marital property generally includes:
- Income earned during the marriage
- Real estate purchased during the marriage
- Retirement accounts and pensions accrued during the marriage
- Vehicles, investments, and personal property acquired during the marriage
- Debts incurred during the marriage
Non-marital property typically includes:
- Assets owned before the marriage
- Inheritances received by one spouse
- Gifts given to one spouse individually
- Property excluded by a valid prenuptial or postnuptial agreement
- Certain personal injury awards
How Courts Decide What Is “Equitable”
Illinois law lists several factors that judges must consider when dividing marital property. These factors help the court determine what is fair.
Key considerations include:
- Each spouse’s contribution to acquiring, preserving, or increasing the value of marital property
- The value of each spouse’s non-marital property
- The length of the marriage
- Each spouse’s economic circumstances at the time of division
- Whether one spouse will have primary parenting responsibilities
- Any dissipation of marital assets
- Each spouse’s earning capacity and future financial needs
- Tax consequences of the property division
Why Property Division Is Rarely 50/50 in Practice
Even though a 50/50 split is possible, it is not the default. Several common situations lead to unequal divisions:
One Spouse Earns Significantly More
If one spouse has a much higher income or greater future earning potential, the court may award a larger share of marital assets to the lower-earning spouse.
One Spouse Sacrificed Career Opportunities
If a spouse stayed home with children or supported the other spouse’s career, the court may compensate them with a greater share of property.
One Spouse Dissipated Assets
Spending marital funds on gambling, affairs, or other improper purposes can result in an unequal division.
One Spouse Will be the Primary Residential Parent
Courts may award the custodial parent a specific assets, especially the marital home, to promote stability for the children. Often this is balanced elsewhere in the equitable distribution.
How Debts Are Divided in Illinois
Just like assets, marital debts are divided equitably. This includes:
- Mortgages
- Credit card balances
- Auto loans
- Medical bills
- Personal loans
The court may assign debts based on who incurred them, who benefited from them, and who is in the best position to pay them. Debt division does not always mirror asset division.
Can Spouses Agree to a 50/50 Split?
Yes. Many couples choose to divide property equally as part of a negotiated settlement. Illinois courts generally approve these agreements as long as they are voluntary and fair.
However, spouses are not required to split everything evenly. They can negotiate any division that works for their family, whether equal or not.
Understand Illinois Property Division Laws in Your Divorce
Understanding the differences between an equal split and equitable division can help you better know what to expect in your divorce. Your attorney can guide you through the process, protect your rights, and seek a fair division of the assets in your case.
At Kulerski & Cornelison, our family law attorneys are ready to help. Contact us today for a consultation of your case.