What You Should Know About Equitable Distribution

 Posted on September 18, 2018 in Division of Property

Everyone knows that when you get divorced, your ex-spouse gets half of everything—unless you have a prenuptial agreement. That is just the way it works, right? Well, not exactly. Not in Illinois anyway, along with about 40 other states. The idea of an equal 50-50 split applies only to the nine states that maintain a standard known as community property in divorce. The remaining states, including Illinois, use what is called an equitable distribution standard, which may vary slightly from state to state, but generally requires a more in-depth consideration of a divorcing couple’s property and circumstances.

Determining and Valuing the Marital Estate

The equitable distribution guidelines in Illinois are contained in the Illinois Marriage and Dissolution of Marriage Act. The process begins with establishing which assets belong to the couple and which belong to each individual spouse. Those that belong to the couple include all property acquired by either spouse during the marriage with limited exceptions for gifts, inheritances, and judgments. Assets owned by either spouse prior to the marriage, along with the exceptions to marital property, are non-marital property and not subject to division. The value of the marital estate must also be determined, which may require the assistance of various experts, including real estate appraisers, financial advisors, and other professionals.

Considerations for Equitable Distribution

Once the marital estate has been established and valuated, the court must make a determination regarding the portion of the estate to be allocated to each party. In doing so, the court is required by law to take into account:

• Each party’s contribution to the acquisition and value of the marital estate, including that of a stay-at-home parent or homemaker;
• Property dissipated or wasted by either spouse after the breakdown of the marriage;
• The value of property allocated to each party;
• The duration of the marriage;
• How the division of property will affect each party’s economic situation;
• Obligations and rights from either party’s previous marriage;
• The age, health, occupation, and earning capacity of each party;
• Any custodial or parental provisions regarding the couple’s children;
• Whether or not allocated property will be in addition to ordered spousal maintenance;
• Tax consequences of the asset distribution; and
• Any valid prenuptial or postnuptial agreement between the parties.

Based on these factors, the court will decide how the marital estate is to be divided. Obviously, some assets are more easily divided than others, but offsetting considerations may be made to accommodate an equitable split.

It is also important to keep in mind that the entire process may be avoided if the parties have reached a property settlement agreement on their own. As long as the terms are reasonably fair to each spouse, the court will approve the agreement and it will become enforceable as a court order.

DuPage County Division of Property Attorney

If you are considering a divorce, you should enlist the assistance of an experienced Lombard asset division lawyer. At A. Traub & Associates, we are equipped to help you throughout every stage of the process, from initial planning all the way through to post-decree modifications and beyond. Call 630-426-0196 to schedule an appointment today.

Source:

http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=075000050HPt%2E+V&ActID=2086&ChapterID=59&SeqStart=6100000&SeqEnd=8350000