Property Division in Divorce: I Get Half of Everything, Right?

 Posted on August 20, 2015 in Distribution of Assets

The short answer to that question is no. More accurately, the answer is not necessarily. Dividing property during divorce is a bit more complicated than simply splitting the marital estate in half. In fact, the word "half" does not appear anywhere in the statute governing the allocation of assets in the state. Instead, Illinois law is based on the principles of equitable distribution which look to justly allocate marital property based on the consideration of a number of factors.

Community Property States

The basis for most people’s assumption of splitting property in half is the community property concept currently in place in nine states, including Wisconsin, California, and Texas. These principles maintain that, in marriage, both partners equally own all marital assets and that each is entitled to half upon divorce. This applies regardless of employment considerations, contributions to the marriage or family, or any other seemingly relevant concerns. In many cases, spousal maintenance or alimony awards are used to compensate for such considerations.

Equitable Distribution

The remaining 41 states, including Illinois, adhere to the property division philosophy of equitable distribution. Under the ideals of equitable distribution, the goal of the court is to allocate property and debts in such a way that is fair and just, rather than necessarily equal. Under Illinois law particularly, the court is required to take into account a large number of circumstantial factors when determining what is fair and just. Such factors include, by law:

• The contribution of each party to the marital estate and to the marriage, including the intangible contributions of a stay-at-home spouse;
• The age, health, employability and resources of each spouse;
• How the allocation of property will affect each spouse, including financial obligations and tax liabilities;
• Which spouse, if either or both, will be primarily responsible for the couple’s children;
• Assets dissipated by either spouse; and
• Any valid prenuptial or postnuptial agreements.

To revisit the initial question, will you get half of everything after an Illinois divorce? You could, but only if half is found to be fair and just in your specific situation.

If you are considering divorce and would like assistance in planning for the process, contact an experienced Arlington Heights divorce attorney. Our compassionate professionals understand how difficult divorce can be and are committed to helping you achieve the outcome you deserve. Call today and put our team to work for you.