What Is a Contested Divorce?

A contested divorce is one in which the spouses cannot agree on certain aspects of the divorce itself, whether that involves division of assets or debts, child support or custody, or who has rights to the family pet. A divorce isn’t considered contested while the spouses are still negotiating; once they’ve reached an impasse, the divorce moves into the contested state.

If the sticking points cannot be resolved on their own, the case will go to court, and the judge will determine how the issues, including property division, will be resolved. This may or may not be to either spouse’s satisfaction.

What Is a Community Property State, and Is Illinois One?

In a community property state, the court views all property acquired and used during the marriage to be owned equally by the spouses. During a divorce, all the community property will be divided as close to 50/50 as is feasible.

Illinois is not a community property state. Instead, Illinois courts look at several factors in terms of dividing the property equitably, which doesn’t necessarily mean equally. If one spouse’s income is much lower than the other, the court may rule that the lower-income spouse receives more of the assets, and the other spouse takes on more of the marital debts.

What Factors Does the Illinois Court Look at When Dividing Property in a Contested Divorce?

There are several things the court will take into consideration when determining property division when the spouses can’t agree. Here’s what might be looked at if the court has to oversee property division in a contested divorce.

  • Pre- or post-nuptial agreements. The couple drew up these agreements that state how the property would be divided in the event of divorce. As the names imply, prenuptials are drawn up prior to the marriage, and postnuptials are drawn up after the couple is married. Unless the court has reason to believe that one spouse was coerced into unwillingly signing the agreement or there’s an imbalance that makes it inequitable, these agreements may be binding.
  • Contributions to the marriage. This includes income, of course, but also looks at the value of one spouse being un- or underemployed for homemaking and childraising purposes.
  • Future finances. The court also looks at the current and potential future economic situation of each spouse, including whether one spouse will have primary physical custody of any children. The court will look at the earning potential of each spouse and what tax implications may be. When child or spousal support (also known as alimony) are involved, that will be figured into the financial calculations. In some cases, one spouse may give the other spouse property instead of support, and that is considered as well.
  • How long the marriage lasted.
  • Value of assets and debts. While the court may not make an equal division of these things, it will try to divide them fairly based on the other factors listed here.
  • Dissipation. This means whether or not one or both spouses hid or wasted marital assets.
  • Prior obligations. The court will look at whether either spouse receives or pays child or spousal support from a prior marriage.
  • Other factors. These include everything from each spouse’s age and health, employability, and overall n

When dealing with a contested divorce that goes to court, it’s vital to work with an experienced divorce attorney who may help you build a strong case for your wishes and needs.

What if We Can’t Agree on Property Division but Don’t Want to Go to Court?

Leaving property division decisions to the court can feel dangerous. If the spouses can’t come to an agreement on their own, there’s another option before going to court: Mediation.

Mediation is a form of alternative dispute resolution (ADR). When negotiations between spouses and their attorneys have reached an impasse, bringing in a mediator can help. The mediator is an impartial third party and can’t make orders as to how the property should be divided the way a judge can.

Mediators are often family law attorneys or former family court judges, so they’re usually knowledgeable about Illinois divorce laws and procedures. In some cases, the court may order a couple to undergo mediation before bringing the divorce to court.

But instead of acting as a lawyer or judge, the mediator’s job is to listen to each spouse, determine what each wants and needs, and try to guide them toward resolution. It’s a way of ensuring each party is fully heard by someone who understands them. Sometimes, a mediator can make suggestions that neither spouse had thought of.
When successful, mediation can lead to a mutually acceptable agreement that’s less costly, time-consuming, and stressful than going to court.

What Should I Do if I Need Help with Property Division in a Contested Divorce in Illinois?

Call the Law Offices of Robert Buchanan at 312-757-4833 for a no-obligation free consultation. Divorce is considered one of life’s most stressful events, even if it’s amicable. If it’s contested, it can be even more so. Our team of experienced, knowledgeable divorce attorneys understands the stress you’re experiencing. We can help walk you through the specifics of your case (because every case is unique) and determine what might be possible in terms of property division, whether that’s coming to an agreement through mediation or proceeding to court.