Unlike several other states, Illinois divorce law does not start out by assuming that everything needs to be divided 50/50 during a divorce. Illinois courts aim to ensure that property is divided in just proportion. While fairness can be a fairly subjective concept, there are several factors that courts typically consider when arriving at a decision.
In many cases, property division does not reach the courts if the parties are able to reach an agreement. However, a judge may refuse to approve or require the modification of provisions that are clearly unfair.
One of the factors that will affect property distribution is the duration of the marriage. A spouse who does not earn much but has spent years contributing to the household in other ways may be assigned a larger share of assets than he or she created. Courts also look at each party’s financial and other contributions to building marital assets. Conversely, a spouse who dissipates assets by wasting, destroying or hiding them can be penalized in the distribution. However, fault that is not financial will not play a role in distribution.
Courts also consider the spouses’ respective financial prospects and earning power. If there are children, those children’s interests will also play a role when deciding upon the distribution of specific assets.
Today, many couples choose to control future asset distribution through postnuptial or prenuptial agreements that specify the disposition of particular assets in the event of a divorce. While these agreements are not guaranteed to be enforced, in most cases judges will weigh them heavily.
Assets that should not be split
Couples who own large assets may face some unique problems when it comes to distribution. While a typical way of dividing an asset is to split it in half or order a sale and split of the proceeds, there are some types of property that will potentially lose a lot of value if this process is followed. For example, breaking up a business can substantially diminish its value. An alternative approach is to award each spouse an equivalent property, allowing the assets in question to remain intact. If there is one large asset and several smaller ones, one spouse may retain the large property and leave the others to the ex-spouse.
When it comes to large assets, other factors to consider include current and future taxation, potential for growth in value, whether they can be easily liquidated, and how much it costs to maintain them. Sitting down with an experienced divorce lawyer can help you get a clearer picture of your financial goals in the divorce.