August 28

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How Is Property Divided In A Divorce?

By Robert Buchanan

August 28, 2017


Short Answer: Spouse A keeps Spouse A’s property; Spouse B keeps Spouse B’s property; and the marital estate is divided equitably between the parties. Generally, property acquired during the marriage is deemed marital; there are, however, numerous exceptions to this rule, which are outlined below. Equitable means fair, and can vary substantially depending on the circumstances of the marriage.

Longer Answer: In a divorce, property is divided into three estates: Spouse A’s estate, Spouse B’s estate, and the marital estate. Spouse A keeps Spouse A’s estate. Spouse B keeps Spouse B’s estate. The marital estate is divided equitably between the parties. There are two steps of analysis required by the court: (1) to what estate does the property belong; and (2) what is an equitable division of the marital estate.

Step 1: To what estate does the property belong?

All property acquired during the marriage is presumed to be part of the marital estate. In fact, the burden of proving property is not part of the marital estate, lies on the party claiming an exclusive right to the property. When the parties dispute the estate to which property belongs, the court will analyze whether the property falls within one of the eight categories of non-marital property that are laid out by the Illinois Marriage and Dissolution of Marriage Act (the “Act”). In the order that they appear in the Act, the categories as follows:

(1) property acquired by gift, legacy or descent;

(2) property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, legacy or descent;

(3) property acquired by a spouse after a judgment of legal separation;

(4) property excluded by valid agreement of the parties;

(5) any judgment or property obtained by judgment awarded to a spouse from the other spouse;

(6) property acquired before the marriage;

(7) the increase in value of property acquired by a method listed in paragraphs (1) through (6) of this subsection, irrespective of whether the increase results from a contribution of marital property, non-marital property, the personal effort of a spouse, or otherwise, subject to the right of reimbursement provided in subsection (c) of this Section; and

(8) income from property acquired by a method listed in paragraphs (1) through (7) of this subsection if the income is not attributable to the personal effort of a spouse.

750 ILCS 5/503(a).

In addition to these categories, the court may also to determine whether the non-marital property was transmuted into marital property. Specifically, the Act states that “[f]or purposes of distribution of property pursuant to this Section…non-marital property transferred into some form of co-ownership between the spouses…is presumed to be marital property, regardless of whether title is held individually or by the spouses in some form of co-ownership….” 750 ILCS 5/503.

Step 2: What is an equitable distribution of the estate?

Pursuant to section 503(d) the Act, “… the court shall assign each spouse’s non-marital property to that spouse. It also shall divide the marital property without regard to marital misconduct in just proportions….”

Determining what is an equitable distribution of property is not a straight forward task. The Act requires the court to analyze “all relevant factors….” These factors include, but are not limited to:

(1) the contribution of each party to the acquisition, preservation, or increase or decrease in value of the marital or non-marital property, including (i) any such decrease attributable to a payment deemed to have been an advance from the parties’ marital estate under subsection (c-1)(2) of Section 501 and (ii) the contribution of a spouse as a homemaker or to the family unit;

(2) the dissipation by each party of the marital or non-marital property, provided that a party’s claim of dissipation is subject to the following conditions:

(i) a notice of intent to claim dissipation shall be given no later than 60 days before trial or 30 days after discovery closes, whichever is later;

(ii) the notice of intent to claim dissipation shall contain, at a minimum, a date or period of time during which the marriage began undergoing an irretrievable breakdown, an identification of the property dissipated, and a date or period of time during which the dissipation occurred;

(iii) the notice of intent to claim dissipation shall be filed with the clerk of the court and be served pursuant to applicable rules;

(iv) no dissipation shall be deemed to have occurred prior to 5 years before the filing of the petition for dissolution of marriage, or 3 years after the party claiming dissipation knew or should have known of the dissipation;

(3) the value of the property assigned to each spouse;

(4) the duration of the marriage;

(5) the relevant economic circumstances of each spouse when the division of property is to become effective, including the desirability of awarding the family home, or the right to live therein for reasonable periods, to the spouse having custody of the children;

(6) any obligations and rights arising from a prior marriage of either party;

(7) any antenuptial agreement of the parties;

(8) the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties;

(9) the custodial provisions for any children;

(10) whether the apportionment is in lieu of or in addition to maintenance;

(11) the reasonable opportunity of each spouse for future acquisition of capital assets and income; and

(12) the tax consequences of the property division upon the respective economic circumstances of the parties.

750 ILCS 5/503(d).

As is clear from the extensive nature of the factors to be considered by the court, the determination of what is equitable, can be very nuanced and analytical.

Robert Buchanan

About the author

Robert Buchanan is the founder and manager of The Law Office of Robert B. Buchanan.

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