Understanding Equitable Distribution in Divorce

 Posted on August 11, 2015 in Divorce

Despite becoming a colloquial cliché, your ex-spouse will not necessarily get half of everything after divorce—not in Illinois, anyway. Instead, property division laws in Illinois are based on the principle of equitable distribution, a concept much more complex than adding up assets, subtracting debts, and splitting the result down the middle. Equitable distribution requires a couple—and the court, if necessary—to divide the marital estate in a manner that is fair, just, and accounts for each partner’s contribution to the marriage.

What is the Marital Estate?

The first consideration in the division of property process for a divorcing couple is to determine the assets and debts that are to be allocated. According to Illinois law, the marital estate includes any property acquired by either spouse during the course of the marriage, with very few exceptions. Gifts and inheritances to a particular spouse are not considered to be marital property, nor are property and proceeds generated by the use or sale of such gift or property. Likewise, property owned previous to the marriage and proceeds generated by it are not marital assets either.

Assigning Value

A divorcing couple negotiating property division outside of court may only need a general idea of the actual value of the assets to be divided. The court, on the other hand, will require a more accurate accounting which often includes real estate appraisals, business valuations, and complex calculations of investment accounts. This must be done so the court can more fairly balance the allocation of assets between the parties.

Applying Equitable Distribution

Illinois law requires the court to “divide the marital property without regard to marital misconduct in just proportions considering all relevant factors.” The law goes on to list a number of circumstantial considerations that must be taken into account, including, but certainly not limited to:

• The contribution of each spouse to the marriage and estate, including stay-at-home parents and homemakers;
• Any assets inappropriately dissipated by either spouse;
• Each spouse’s relevant financial situation;
• The age, health, and perceived future opportunities of both parties;
• The duration of the marriage;
• Child custody provisions; and
• Any valid agreement, such as a prenuptial or postnuptial agreement, between the parties.

The court must also consider how the allocation of property will affect each spouse. For example, assigning the family home to a particular party may impose tax liabilities or mortgage payments which he or she is not equipped to afford.

Legal Help for Your Divorce

Equitable distribution arrangements can be fairly straightforward or very creative and complex, depending on the nature of the marriage and estate. No matter how complicated your situation may be, you can rely on the help of an experienced Rolling Meadows divorce attorney. Attorney Donald J. Cosley has been helping Illinois families find workable solutions to their family law concerns for more than two decades and is ready to work with you. Schedule your free consultation today by calling 847-253-3100.