Divorcing couples in Illinois usually try to reach an amicable property division settlement at the negotiating table. When they are unsuccessful, family law judges decide how their marital estates should be divided based on the legal principle of equitable distribution. This means that the assets acquired and debts taken on during a marriage are divided fairly but not necessarily equally. Most states approach property division in this way, but nine states in the southern and western United States have community property laws that require marital states to be divided equally even when this leads to an inequitable outcome.
Factors that influence property division decisions
When they are called upon to make property division decisions, family law judges in states with equitable division consider how long the divorcing couple were married, the financial contributions each spouse made during the marriage, and the reasons the marriage is ending. Judges may treat spouses less favorably when they have been unfaithful, abusive or violent. They could also decide that marital assets should be divided unequally if one of the spouses spent extravagantly and ran up debts while contributing little in the way of income.
Separate property is not subject to division
Only assets that were acquired during a marriage are divided in a divorce. Assets that spouses owned before they got married or gifts or inheritances they received while married are considered separate property and are not subject to division. This can become a contentious issue when separate property has become co-mingled with marital assets. Examples of co-mingling include placing inherited money into a joint bank account or using marital income to maintain or improve a separate asset such as a house or car.
Avoiding property division disputes
Experienced family law attorneys may encourage couples to take proactive action to avoid property division disputes by entering into pre- or postnuptial agreements. If a marriage ends in divorce and no such agreement is in place, attorneys could urge the spouses to do all that they can to avoid leaving these decisions up to a judge. When negotiations are at an impasse and further progress seems unlikely, attorneys may suggest pursuing alternatives to litigation such as arbitration or mediation.