Due to the fact that Illinois is an ‘equitable division’ state, it is not necessary that marital property is divided equally between spouses during a divorce. Let’s look at the main factors which decide how much of the marital property will be awarded to each spouse:
The first thing the court considers is how much each spouse has contributed towards acquiring, preserving and increasing/decreasing the value of the property. In general, the partner who brought in the most income is likely to get the lion’s share of the assets. The value added to the property also extends to the spouse who serves as the homemaker in the family. The court will determine the value brought into the family unit by the homemaker and award assets accordingly. Actions taken by one or both spouses which lead to dissipation of property are also noted. A claim for dissipation needs to be filed 60 days before trial by one spouse against the other for the claim to be valid.
Both the marital and non-marital assets are scrutinized, and if one spouse has a large amount of non-marital assets, the other spouse may be entitled to a greater share of the marital assets. How long the marriage lasted is also considered. The longer the marriage, the stronger the case for the homemaker to justify contributions to the marital assets. The financial situation of each spouse is observed. If one spouse is gainfully employed while the other has no job or skills, the unskilled spouse is deemed in greater need of financial assistance and hence deserving of a greater share of the property.
Another important factor is whether one or both spouses have had earlier marriages for which they need to pay child support, alimony etc. The spouses may also have arrived at some form of agreement for the division of property. The court wants to be certain which of the two spouses the children will stay with, and what costs child rearing will be. One spouse may also need to pay maintenance to the other for a specified amount of time until he/she become financially stable. The future income of both spouses based on estimated future acquisition of assets and income is determined. The spouse who is deemed to have an income disadvantage in the future gets a larger share. The amount of taxes that will need to be paid to the spouses during the division is also considered. A competent tax attorney can go a long way towards ensuring tax payment is factored into the division process.
