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Illinois rules for property division in divorce

Understanding how Illinois addresses property division may help spouses approach negotiations with realistic expectations. FindLaw explains that Illinois does not have a community property law, and because the state seeks to divide property fairly, spouses may not end up each receiving half. 

What does the court consider when deciding what is fair? According to the Illinois statute, equitable division includes the following:

  • How long the marriage lasted
  • The contents of a prenuptial or postnuptial agreement
  • Child custody provisions
  • The contributions of each spouse to the marriage, including homemaking
  • The occupation, employability and earning potential of each spouse
  • The value of the property that each spouse receives

Income and liabilities are a critical factor to maintaining a reasonable standard of living, and this encompasses more than just earnings from a job. For example, if one spouse already has obligations such as spousal support or child support from a previous marriage, or if the spouse is receiving these, that may affect the fair division of property. The judge will not consider as a factor whether one spouse was unfaithful to the other.

Some assets and debts are not included in property division. This is known as nonmarital property, and it includes the following:

  • Property that has been excluded by a valid prenuptial or postnuptial agreement
  • Property acquired before the marriage that was not contributed to or comingled with marital assets
  • Gifts or inheritances, or separate property acquired through the use of a gift or inheritance
  • Property that a spouse acquires after the couple has separated

The division of some assets, such as retirement accounts or real estate, may be more complex because contributions or market fluctuations may affect the value of the asset through the course of the marriage. Other factors may also apply.

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