How Is Property Divided In An Illinois Divorce?

In Illinois, not all property is divided in a divorce. Property held by either or both parties is either "marital" or "non-marital".

Non-marital property is not divided in an Illinois divorce.  “[T]he court shall assign each spouse’s non-marital property to that spouse.” 750 ILCS 5/503(d)

Marital property is divided in an Illinois divorce. An Illinois divorce court “shall divide the marital property without regard to marital misconduct in just proportions” 750 ILCS 5/503(d)

Both parties must prove that the properties either couple owns have a marital or non-marital quality. “[I]t is the parties’ obligation to present the court with sufficient evidence of…the property [and its value]” In re Marriage of Smith, 114 Ill. App. 3d 47, 54 (Ill. App. Ct. 1983)

The Illinois divorce court will then determine if the property in question is marital (divisible in a divorce) or non-marital (not divisible in a divorce). “The court shall make specific factual findings as to its classification of assets as marital or non-marital property, values, and other factual findings supporting its property award.” 750 ILCS 5/503(a)

Marital property is rule. "“[M]arital property” means all property, including debts and other obligations, acquired by either spouse subsequent to the marriage" 750 ILCS 5/503(a)

Non-marital property is typically an exception to marital property. "

the following, which is known as “non-marital property”:

(1) property acquired by gift, legacy or descent or property acquired in exchange for such property;

(2) property acquired in exchange for property acquired before the marriage;

(3) property acquired by a spouse after a judgment of legal separation;

(4) property excluded by valid agreement of the parties, including a premarital agreement or a postnuptial agreement;

(5) any judgment or property obtained by judgment awarded to a spouse from the other spouse except, however, when a spouse is required to sue the other spouse in order to obtain insurance coverage or otherwise recover from a third party and the recovery is directly related to amounts advanced by the marital estate, the judgment shall be considered marital property;

(6) property acquired before the marriage, except as it relates to retirement plans that may have both marital and non-marital characteristics;

(6.5) all property acquired by a spouse by the sole use of non-marital property as collateral for a loan that then is used to acquire property during the marriage; to the extent that the marital estate repays any portion of the loan, it shall be considered a contribution from the marital estate to the non-marital estate subject to reimbursement;

(7) the increase in value of non-marital property, irrespective of whether the increase results from a contribution of marital property, non-marital property, the personal effort of a spouse, or otherwise, subject to the right of reimbursement provided in subsection (c) of this Section; and

(8) income from property acquired by a method listed in paragraphs (1) through (7) of this subsection if the income is not attributable to the personal effort of a spouse." 750 ILCS 5/503(a)

If it is not crystal clear that the property falls into one of the non-marital exceptions, the property will be deemed marital, "“Any doubt as to the nature of the property must be resolved in favor of the finding that it is marital” In re Marriage of Steel, 2011 IL App (2d) 080974

Once the marital property has been identified by the court, the Illinois divorce court “shall divide the marital property without regard to marital misconduct in just proportions” 750 ILCS 5/503(d)

Illinois law does not require this division of property to be equal. "“The Act does not require an equal division of marital property, but an equitable division” In re Marriage of Jones, 543 NE 2d 119 – Ill: Appellate Court, 1st Dist. 1989

An Illinois divorce court court can consider “each party’s contribution to the acquisition, preservation, or increase or decrease in value of the marital or non-marital property” 750 ILCS 5/503(d)

Finally, any allocation of marital property to either spouse is reduced by their dissipation of marital property. “Dissipation is defined as the use of marital property for one spouse’s benefit for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown” In Re Marriage of Tietz, 605 NE 2d 670 Ill Appellate Court, 4th Dist. 1992.

This process may sound complex but it is logical. Dividing marital property in an Illinois divorce must be done strategically and methodically in order to insure the maximum allocation of marital property to you. Again, property is not divided equally in any Illinois divorce and is subject to the above multi-step analysis.