In Illinois, you have the right to reach a property settlement agreement with your spouse: the two of you can mutually decide how your assets and debts will be divided in a divorce. But if you don't get along, or otherwise can't come to an agreement, the court will make this decision for you. Illinois law follows a system of equitable distribution to divide your marital assets. This means the court will divide the property in a fair and just manner -- though not necessarily equally -- after evaluating your circumstances.
Before the court can divide assets in your divorce, it must first categorize the property you and your spouse own. This is because Illinois courts only have authority to divide marital property in divorce. Any asset you or your spouse acquired during the marriage is considered marital property. Assets you acquired before the marriage or received by inheritance or gift while married is considered your separate property, also known as non-marital property. Separate property is off-limits, and the court cannot divide it in your divorce case.
Read More: Discovered Marital Property After Divorce
Commingling and Transmutation
Sometimes, determining whether property is marital or separate is not easy or obvious. This often happens when spouses mix, or commingle, their assets. For example, if you place money you earned before your marriage into a joint account shared with your spouse, you have commingled your separate and marital assets. Unless you can later trace the funds to their original separate property source, the court is likely to deem the entire account marital property and divide the balance accordingly.
The situation can become even more complicated if proceeds from the account are used to pay family expenses. In such cases, the court may find that you intended to use your separate funds for the benefit of the family, essentially treating the funds as a gift to the marriage. This is known as transmutation. The court will not reimburse these separate funds to you, even if you can trace them to separate property, because they have been converted into marital property.
Once the court is able to distinguish between your marital and separate property, it will begin the process of distributing your family's marital assets. To do so, it will employ the principles of equitable distribution. This means the court will divide property between you and your spouse in a manner that is fair and just, though not necessarily equal, after evaluating several factors set out in Illinois law. These factors include the length of the marriage; each spouse's contributions, including nonpaid contributions, such as by a homemaker; any custody arrangements; each spouse's age, health, income and economic circumstances; and tax consequences of any property division.
Under Illinois law, marital misconduct is not relevant to property division during divorce. This means the court will not consider a spouse's bad behavior when dividing the marital assets. So, if your spouse cheated on you and this is what led to the divorce, the court won't care -- you will not get more property because of it. But there is one exception to this rule: If your spouse engaged in financial misconduct, and this led to a waste of marital assets, the court may order him to reimburse you for those wasted assets in the divorce. For example, if your spouse used marital funds to splurge on his mistress by buying jewelry and luxury vacations, the court may award you additional marital assets to compensate for this loss because those funds were not used for the benefit of the family.
- Illinois General Assembly: Illinois Compiled Statutes, 750 ILCS 5, Illinois Marriage and Dissolution of Marriage Act
- Roberts Law Firm: Property Division in Illinois Divorce
- Brian J. Thompson: Transmutation of Nonmarital Property to Marital Property
- American Academy of Matrimonial Lawyers: Division of Assets
- Schiller, DuCanto and Fleck: How Property Is Divided in an Illinois Divorce Case; Burton S. Hochberg
- Cordell and Cordell: Illinois Divorce Questions
- David De Lossy/Photodisc/Getty Images