How is property divided in a divorce?

On Behalf of | Mar 16, 2022 | family law |

There may come a time when married couples face the reality that divorce is their best option. One of the main concerns for divorcing couples involves how property will be divided. Couples who have amassed a fair amount of property are likely to have questions about who will get the house, what happens if one person moves out, or what will happen to their retirement fund.

Distress over property and financial issues like these cause many couples to rethink divorce entirely. However, a basic understanding of property division laws in Illinois, and advice from a family law attorney, can help ease these worries, so the right decisions can be made.

Marital property defined

Under Illinois law, any property that was purchased during the marriage is considered marital property. This means that both spouses have an equal claim to the property. The legal status of marital property does not change if one spouse does not physically possess it, or if the property is moved.

Therefore, a house that was purchased during the marriage is marital property and remains marital property even if one spouse moves out. This means that moving out of a house does not mean that person gave up their right to the house in the divorce.

What is not marital property?

Some property is not considered marital property. This includes property:

  • Owned by one spouse before the marriage
  • Given to a spouse as a gift
  • Left to a spouse as an inheritance
  • Acquired after the couple has legally separated

Spouses are always free to agree on their own labels for property. Even if a piece of property is legally considered marital property, spouses may agree to treat it as the separate property of one spouse, so it is not considered as part of the overall marital property division.

Once all marital property is identified, a court will divide it in the fairest manner to both spouses. This does not necessarily mean an equal split. Rather, the court will examine several factors, including the length of the marriage, the separate income of each spouse, and each spouse’s age and health. An analysis of each spouse’s standard of living during the marriage will also be done.

This is the general approach taken to property division during a divorce. However, every situation is different, so having advice tailored to your circumstances is best.