Courtney ∙ Clark Law, P.C.Courtney ∙ Clark Law, P.C.
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Equitable distribution doesn't necessarily mean equal

When you began contemplating divorce, you may have thought that you would receive half of everything you and your spouse own. However, you then heard that Illinois is an equitable distribution state, which means that you would receive a "fair share" of the marital estate.

Doesn't that mean half? Unfortunately, no, it doesn't. The courts have a significant amount of discretion when it comes to what "fair" means while dividing marital property in a divorce. You should know that it's possible that not all of the property you and your spouse own falls under marital property. Some of it may be separate property, which will also affect how the courts would divide property in your divorce.

What constitutes separate property?

The courts consider any property you inherited or obtained prior to the marriage as separate property. In addition, any gifts given to you during the marriage and any property your spouse agreed belongs solely to you also constitute separate property. When determining and valuing the assets that make up the marital estate, these items stay off the list and belong to you.

What constitutes marital property?

Any property you and your spouse acquired together during the marriage becomes part of the marital estate in a divorce. This could include items such as the following:

  • The marital home
  • Any other real estate
  • Vehicles
  • Household furnishings
  • Investment accounts
  • Retirement accounts

In addition, any debts that you and your future ex-spouse acquired during the marriage help make up the marital estate.

Dividing up the marital estate

After all assets and liabilities are identified, they are valued for division purposes. Then, the court will look at the following factors as they pertain to each of you to determine how to "fairly" divide them:

  • Total value of separate property
  • Current and future financial needs
  • Contributions to marital assets
  • Current and future financial conditions
  • Age
  • Current and future earning capacity
  • Health

The court may also consider whether you have financial obligations to a former spouse or children from a previous relationship. Of course, you and the other party don't need to rely on the court to make these decisions for you. If possible, you may reach a more satisfactory settlement if you and your soon-to-be ex-spouse negotiate your own agreement. As long as the agreement doesn't favor one spouse too heavily, the court may approve it.

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Courtney ∙ Clark Law, P.C.
104 South Charles Street
Belleville, IL 62220

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