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Top Five Marital Property Division Factors in Illinois
27 Jul, 2021
Divorce

Top Five Marital Property Division Factors in Illinois

The state of Illinois utilizes equitable division when splitting up property between spouses in a divorce. During a divorce, the marital estate, which includes both assets and debts, will be divided in a way that will ensure neither party suffers an undue financial burden. To make this determination easier, Illinois law sets out a number of factors to consider. 

A Schaumburg divorce lawyer must be mindful of these factors during court hearings and settlement negotiations. Legally, arguments that hinge on one or more factors usually resonate with the judge. As for settlement negotiations, unless the proposal jives with the factors, the judge will most likely not approve it.

Length of the Marriage

This factor is often important if one spouse was a caregiver and the other one was a breadwinner. The longer the marriage lasted, the more property rights the caregiver spouse receives during marriage dissolution. 

The length of the marriage could also affect property classification issues. Property often becomes commingled during long marriages. For example, Wife might use part of her employment income (marital asset) to retire her student loan debt (nonmarital liability). Significant commingling is rather uncommon if the marriage lasted less than a year.

Non-Economic Contributions to the Relationship

Once again, this factor is important in caregiver/breadwinner marriages. This factor is almost inconsequential unless there was a reasonably clear division of labor.

As far as Illinois law is concerned, economic and noneconomic contributions are equal. Retirement accounts are a good example. One spouse may have made financial contributions. But the other spouse made emotional contributions which were just as important. The difficulty is that economic contributions are easy to track, and noneconomic contributions are more elusive.

This factor sometimes affects child custody determinations, as well. For example, spouses who work 80-hour weeks during the marriage may not make very good residential parents.

Award of Nonmarital Property

Marital property divisions do not occur in a vacuum. The award of nonmarital property usually comes into play. That is especially true if the nonmarital property has a rental house or other income-generating property. So, when considering the standard of living during the marriage, which is another factor, a spouse with a large nonmarital property award might be reduced to a lesser marital property share.

Custody of Minor Children

Generally, it is in the best interests of the children for them to remain in the family home. As a result, selling the marital residence and dividing the proceeds might not be the best idea. In fact, the residential parent often receives outright ownership of the home.

To preserve the other spouse’s home equity share, most Schaumburg divorce lawyers include an owelty deed for partition in these situations. The nonowner spouse receives a lien for his/her equity share. Later, when the owner spouse sells the house, the lien must be paid.

Incidentally, these ownership changes usually affect only the deed. If both spouses signed the note, both spouses remain liable, unless the owner spouse refinances the house.

Relative Earning Capacity of Each Spouse

Generally, people who are healthy, young, and well-educated and have solid job experience have high earning potential. People who are older, in worse health, and have little education or experience are more limited in this area. The marital property division must take these discrepancies into account, if they exist.

This factor could also be important in alimony determinations. If one spouse needs to finish a degree or take other steps to become economically self-sufficient, the judge could deviate from Illinois’ spousal support guidelines.

Count on an Experienced Attorney

Marital property must be divided equitably and consistently with several factors. For a free consultation with an experienced Schaumburg divorce lawyer, contact SLG Family Law.

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