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How is Property Divided Between Spouses if They Get Divorced?  

 Posted on January 18, 2023 in Property Division

will county divorce lawyerIllinois is an “equitable division” state, meaning that marital property and debts divided by the court do not need to be divided equally, but rather the law requires that it be divided equitably. Property division may be negotiated and agreed upon by the spouses or decided in court. While the division of assets does not need to be equal, it should be fair, regardless of marital factors such as who was the household provider or who purchased what. 

Marital Property vs. Non-Marital Property 

When evaluating assets, divorcing spouses may be able to divide their assets into two categories: material property and non-marital property. Assets that are considered marital property are all things that were acquired during the marriage and before the couple was legally separated. Assets considered non-marital property are all things acquired before the couple was legally married. Assets appointed through inheritance or gifted during a marriage can also be considered non-marital property. 

Dividing Different Types of Property

Deciding on the division of properties is going to lead to difficult conversations. When deciding what is fair for both parties, it is important to go into these conversations with a level head and willingness to negotiate. Knowing the different types of property that will be discussed will make these conversations easier to settle. 

Assets and liabilities divorcing spouses need to address may include: 

  • Debts - During the marriage, both parties may have acquired several different forms of debt. These include credit card balances, home mortgages, or auto loans. Both parties will be responsible for paying off debts obtained during the marriage, even if a debt was acquired by only one of the parties. To make things easier, it is best to start taking action to pay off these during the divorce process. 

  • Retirement Savings - Divorcing spouses may need to use a Qualified Domestic Relations Order (QDRO) to divide retirement assets and ensure that each party will not be required to pay taxes or face penalties for withdrawing any funds before retiring. 

  • Businesses - When dividing a family business owned by both parties, it is important to look into what the future of the business will look like and understand who plays the bigger role in the business. Parties can decide to co-own the business or make one spouse the sole owner and buy off the party's ownership. If they decide to sell the business altogether, they need to agree on how to divide the proceeds from the sale. 

  • Real Estate - When discussing ownership of shared real estate properties, it is important to have get an accurate appraisal and then determine the best way to go forward. Spouses may sell the property and split the proceeds or if one spouse decides they want to be the sole owner of a party, they can buy out the other spouse’s share of equity. If a spouse wants to be the sole owner, they need to determine if they can afford to pay for the property by themselves. 

  • Money and Investments - There are cases where financial accounts are easily divided equally between the parties. However, investments and complex assets will be much harder to value and divide. 

  • Vehicles - If both parties each have a vehicle they regularly use, this may be an easy division between parties. However, if one of the vehicles costs more or the parties share additional vehicles such as a boat or motorcycle, this will require negotiation about who should get these vehicles and if a sole party can afford to own these vehicles.

  • Valuables - High-value property should first be appraised, this way each party understands the value of these items. 

Contact A Will County, IL Divorce Attorney 

Divorce is already a difficult process to go through. If you and your partner are struggling to decide how to divide marital property you do not need to figure this out alone. Our Naperville divorce lawyers can help you navigate the asset division process and make sure you know what you deserve. Contact us at Law Office of Ronald L. Hendrix, P.C. or call 630-355-7776 for a free consultation. 




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