“She took him to the cleaners!”
“He got everything, left her without a penny!”
“…and she got half of his business!”
Chicago Divorce and Property Division
Without a doubt, you’ve heard someone speak of the property division in their own or a friend’s divorce in extremes, much like these quotes. And it may understandably make you wonder what might come of your own assets should you and your spouse make the decision to divorce. How will they be divided and allocated between the two of you? What assets are “on the table,” so to speak, in terms of your own property division, and are there any that will certainly remain your or your spouse’s property? And what about debts – will those be divided as well? Before you can answer these questions as they relate to your specific situation, it is important to understand what the laws of property classification and property division provide in your Chicago divorce.
What assets are subject to property division in a divorce?
Section 503 of the Illinois Marriage and Dissolution of Marriage Act provides that all marital property is subject to division in divorce.
Generally, marital property is defined as all property acquired by either spouse during the marriage. Anything you acquire after the date of your marriage through the date of a judgment of dissolution of marriage (divorce judgment) is marital property and can and will be divided upon divorce. As a simple example, if you and your spouse opened a joint savings account after you were married, each contributed a portion of your salary into the account, and eventually used those savings to purchase a home, the money you earned is considered marital property and so is the home you purchased with those funds.
However, there are a list of exceptions carved out of this definition, resulting in certain property being classified as “non-marital” and therefore not subject to division during the divorce. At their most basic, these exceptions include:
– Property acquired before the marriage, and property purchased using property acquired before the marriage.
– Property acquired by gift.
– Inherited property.
Any property that is deemed non-marital will be allocated to the owner spouse as his or her separate property. For example, if a spouse inherited a sum of money during the marriage that he kept in a completely separate account used only for that purpose, that money would be his sole and separate property if the spouses later divorced.
Will debts be divided between the parties as well?
The same marital vs. non-marital analysis applies to debts; any debts deemed marital shall be subject to the property division between the parties, and non-marital debts shall be the sole responsibility of the party who incurred the non-marital liability.
How will marital property and debt be divided?
Section 503 provides that in an action for divorce, the court shall assign each party their respective non-marital property, and shall divide the parties’ marital property in just proportions considering all relevant factors. Importantly, “in just proportions” does not mean that property shall be divided equally; instead, the statute provides that the court shall conduct an analysis of all relevant factors, and make a determination based upon the totality of the circumstances. The statute goes on to enumerate twelve factors that should be included in the court’s analysis of the parties’ property division, when relevant. These factors are (in part):
(1) each party’s contribution to the acquisition, preservation, or increase or decrease in value of the marital or non-marital property, including … (ii) the contribution of a spouse as a homemaker or to the family unit … ;
(2) the dissipation by each party of the marital property;
(3) the value of the property assigned to each spouse;
(4) the duration of the marriage;
(5) the relevant economic circumstances of each spouse when the division of property is to become effective, including the desirability of awarding the family home, or the right to live therein for reasonable periods, to the spouse having the primary residence of the children;
(6) any obligations and rights arising from a prior marriage of either party;
(7) any prenuptial or postnuptial agreement of the parties;
(8) the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties;
(9) the custodial provisions for any children;
(10) whether the apportionment is in lieu of or in addition to maintenance;
(11) the reasonable opportunity of each spouse for future acquisition of capital assets and income; and
(12) the tax consequences of the property division upon the respective economic circumstances of the parties.
Upon review of the enumerated factors, it is probably very clear that the statute attempts to contemplate the nearly infinite circumstances and situations that spouses may have experienced during the marriage and find themselves in at the time of their divorce in order to determine the most equitable property division possible. Because the statute is so all-encompassing, it ultimately means that in any property division analysis, no one factor is determinative and the relative weight given to each factor will vary from case to case – this is a “complete picture” analysis as it relates to the parties’ circumstances.
Despite the foregoing, the statute specifically states that marital misconduct shall not be considered in the court’s determination of the parties’ property division. This effectively nullifies any property-division related consequences related to the reasons for the parties’ divorce, which is often surprising to the parties. Instead, the court’s “complete picture” analysis relates only to the parties’ financial circumstances.
Complicating factors and more complex concerns
While it is helpful that that statute provides specific factors for a court to consider when allocating property between divorcing spouses, the fact that the property division is such a holistic analysis also results in it often being a complex one. When one factor weighs in favor of an equal division of assets, another factor will weigh heavily in favor of one spouse receiving a larger share of the property.
Sometimes, the seemingly simple act of classifying property as marital vs. non-marital can be complicated as well. Parties often commingle non-marital and marital property (for example, when a non-marital inheritance is deposited into a joint savings account that contains marital funds), causing one or both assets to lose its original character. This can have far-reaching effects on the property division, as it could result in a substantial amount of property being unexpectedly included in or removed from the marital property “pot” subject to division. Further, these types of analyses often require the involvement of forensic experts to track the flow of funds in an effort to determine if the marital and non-marital funds can be clearly traced and identified despite the commingling such that the original character may be retained.
Several of the factors to be considered by the court in making its property division determination are also subjective, and may require the involvement of experts in order to produce evidence substantiating a parties’ claim. For example, a parties’ employability and opportunity for acquisition of future income is often disputed – when one party has not worked for a period of time order to manage the household, or a spouse has not had a stable employment history, it may be difficult to ascertain their future income earning capacity in contrast to a spouse who has had a long career with demonstrated steady earnings. In these cases, a vocational expert may be hired by one or both parties. Similarly, tax consequences of the property division and the actual value of complex assets may be difficult to ascertain and can often require a financial expert to make a projection as to what the parties can expect upon division of the assets and why those effects weigh in favor of awarding each spouse particular assets.
These are just a few of the complex analyses that may factor into parties’ property division in a Chicago divorce. With so many considerations at play, it can be nearly impossible to know what to expect as you consider how your property will be allocated in the event of a divorce. It is imperative to consult with a lawyer, like the experienced attorneys at Ward Family Law, LLC for expert advice on your particular situation and your impending property division. Let the divorce lawyers of Ward Family Law, LLC give you the peace of mind that your Chicago divorce is being handled by attorneys who know the law and have the experience to navigate these complex issues and advocate in a way that leaves you in the best possible financial position to begin the next phase of your life.