When divorcing couples in Illinois are unable to reach an amicable settlement agreement, family law judges divide marital property equitably, but not necessarily equally. What is equitable is decided on a case-by-case basis, but there are several factors that are taken into account. Judges may be more generous toward spouses who have sacrificed their careers to raise families, and they may look unfavorably on spouses who have been unfaithful or abusive.
Dividing marital estates
Family law judges will also consider how long the divorcing couple were married and the present and future financial needs of the spouses. The ages of the spouses and the contributions they made during the marriage could also influence equitable distribution decisions. When the couple have children, judges may make decisions that favor the primary caregiver to ensure that the child’s needs are provided for. If one of the spouses has a large amount of separate property, they may receive a smaller share of the marital estate.
Separate property
Assets that spouses owned before they got married are not divided in a divorce unless they have become commingled with marital property. An example of a commingled asset is a piece of real estate that was owned prior to marriage and then maintained and improved during the marriage using marital funds. Inheritances and gifts received during a marriage are also considered separate property in Illinois.
Prenuptial agreements
Couples who would prefer not to leave property division decisions up to a judge could try to reach an agreement at the negotiating table, or they may take care of these matters proactively by drafting prenuptial agreements. Experienced family law attorneys could encourage spouses who decide to take this path to negotiate in good faith and work toward agreements that are basically fair. They could also suggest that they revise their prenuptial agreements when their financial situations change and after major life events like a career change or the birth of a child.
