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Tuesday 20, Nov, 2018

Five Important Property Division Factors in Illinois

When it comes to property division, the Prairie State is an equitable division jurisdiction. “Equitable” is not necessarily the same thing as “equal,” but there is a presumption that the divorce must not be an unfair financial burden for either party.

So, to unequally divide property, a Cook County judge must be convinced that one or more of the following factors is an issue. Furthermore, the judge must also hear evidence that the proposed unequal division would not be unfair to the other spouse.

Contributions to the Marriage

Direct economic contributions are relatively easy to calculate. For the most part, all income earned during the marriage is marital property. Moreover, the increase from marital property (i.e. rent on a rental house) is also marital property.

Indirect economic contributions require a little more work, but they are still fairly easy to determine. For example, Wife might lend her financial skills to the management of the aforementioned rental house. She is entitled to credit for those contributions.

Noneconomic contributions (a/k/a the “homemaker factor”) are more difficult to trace. Assume that Husband was a stay-at-home dad in this hypothetical marriage. His noneconomic contribution could be substantial if the house was always clean and minor children were always well cared for. If there were no children, the homemaker contribution could be negligible at best.

Other Property Awards

In most cases, the Cook County judge will consider both marital and nonmarital property. If Husband anticipates a substantial inheritance, a judge could theoretically diminish his marital property share. There is no formula in this area, so judges usually make these decisions on a case-by-case basis.

Dissipation (Waste) of Assets

The dissipation rule is often a back-door for adultery. Assume Husband spent $10,000 on gifts to a girlfriend. Wife would be entitled to $5,000, which is her share of the dissipated marital assets.

Illinois lawmakers have placed some limits on the dissipation rule. There is a 60-day notice requirement and a five-year lookback period. In the above case, Wife must give Husband notice of her dissipation claim at least 60 days before trial, and the claim could only cover gifts over the past five years.

Future Economic Circumstances

As a general rule, young, healthy, and/or well-educated people can work longer and make more money than old, unhealthy, and/or less-educated people. The judge may take these factors into account when making a current property division.

Furthermore, as a general rule, divorced women recoup wealth at a much slower pace than their divorced male counterparts. The judge may take this factor into account, as well, especially if there is evidence that this conclusion applies to the facts of the case.

Agreements Between the Parties

Illinois has adopted the Uniform Premarital and Marital Agreements Act. Under the UPMAA, it is easier to make premarital agreements and more difficult to break them. So, if there is such an agreement, it often figures strongly into the property division. In fact, most judges consider these contracts unbreakable unless they are:

  • Involuntary: Excessive pressure, such as a sign-or-else ultimatum, may be enough in a few cases. But typically, withheld information is what makes a premarital agreement involuntary. Even then, the challenging spouse must prove the withheld information was material and that it was unavailable from any other source.
  • Unconscionable: A 60-40 split, or even a 70-30 split, is uneven but not unconscionable. Instead, an unconscionable division is something like I get all the property and you get all the debts. Even then, the challenging spouse must show that the agreement was unconscionable when it was made.

Premarital agreements are powerful tools, and they can be revised by mutual consent at almost any time.

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Most, but not all, property/debt divisions are 50-50 propositions. Schedule a Consultation with an experienced family law attorney in Chicago, contact Arami Law After-hours visits are available.

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