Familia y Seguridad

In a divorce in Illinois, the spouses’ property will be divided and addressed in the final divorce order. The spouses will either agree beforehand on the division, with the help of a mediator, or a judge will decide after a hearing.

If the spouses want the judge to make decisions regarding property, both spouses must complete a financial affidavit (financial affidavit) and provide certain supporting documents. Each spouse will list their income, living expenses, debts, property, and assets, as well as tax information.   

The judge will next decide whether the property to be divided is “marital” or “non-marital.” The judge will then look to divide marital assets and property in an “equitable” way. This means the split will not necessarily be half and half, but rather what is fair.

Marital property is any property, assets, or money that either spouse earned or received during the marriage, with some exceptions. Property obtained during a marriage is generally presumed to be marital unless it can be shown with evidence or documentation to be non-marital. It does not matter which spouse’s name is on the title or listed in documents. The judge will consider it marital until proven otherwise.

Non-marital property is property, assets, or money that belongs to only one of the spouses. This includes:

• Property owned or acquired by the spouse before marriage,
• Property received as a gift or an inheritance, or left to the spouse in a will,
• Property received by the spouse after a legal separation,
• Property specifically excluded in an agreement between the spouses (for example, a prenuptial agreement),
• Property received by a court judgment awarded to a spouse from the other spouse, 
• Property received in exchange for property that is obtained before the marriage, and
• Any increase in the value of non-marital property unless it was a result of the other spouse’s own efforts. 

Note that sometimes there are times when non-marital property can be considered by a judge to eventually become marital. An example is a spouse who uses part of the money they inherited when their parent died to put a down payment on the family house. Those funds may now be considered marital.

In dividing marital property and assets among the spouses, the judge will consider the following factors:

• Each spouse’s contribution to getting or keeping the property, including increasing or decreasing its value; 
• Any “dissipation” by a spouse, which is where the spouse uses property for only their own benefit when the marriage is breaking down (i.e., money spent on an affair);
• The value of the property given to each spouse;
• How long the marriage lasted;
• The spouses’ financial status, which includes whether there is a preference that the spouse determining the primary residence of any children live in the family home;
• Any obligations or rights that come from a previous marriage;
• Any prenuptial or postnuptial agreements;
• The age, health, sources of income, education, job skills, debts, and needs of each spouse;
• Issues related to the custody of the children;
• If and how the division affects spousal maintenance (alimony);
• Each spouse’s ability to get assets or income in the future; and
• Tax consequences for each spouse, given their financial situation.

No. The judge will not take into account “marital misconduct” like a spouse having an affair when dividing marital property and assets.

However, the judge will take into account “dissipation” of the assets, which is where one spouse uses property for only their own benefit when the marriage is breaking down. Marital funds spent on the affair partner may be considered in the division.

Yes. Under the Illinois Marriage and Dissolution of Marriage Act, the judge will consider the contribution of a spouse as a homemaker or to the family unit in dividing marital property or assets.

Like other property, the judge will first consider whether the house is marital or non-marital property in a divorce case. If the house was bought and paid off by Spouse A before the marriage, it will likely be considered non-marital property and remain with Spouse A after a divorce. However, if both Spouse A and B lived in the house and contributed to mortgage payments, repairs, and maintenance, the house may become marital property.

If deemed marital property, how a house is handled in a divorce can vary depending on what the spouses want:

• Neither spouse wants to keep the house, maybe because neither can afford the mortgage on their own. The house can be sold, and the spouses can divide the proceeds. 
• Both spouses want to keep owning the house together, maybe waiting for a better housing market or for a child to finish school before selling. Another possibility is that parents might want a “nesting” arrangement in which the children live in the house, and the spouses rotate living there during their parenting time. In this instance, it is likely the judge will put a time limit or other conditions.
• Spouse A wants to keep the house, and Spouse B does not. Spouse A can agree to buy out Spouse B’s part of the house.     
• Both spouses want to be able to keep the house individually, or there is some other disagreement about what to do with the house. In that case, a judge will decide who gets to keep the house or if the house will be sold. The judge will consider factors including:
  • The needs of the children and of the parent who lives with the children,
  • The contribution by either spouse in obtaining, preserving, and increasing the value of the home,
  • How other marital property, including other assets and debts, will be divided,
  • The length of marriage and the standard of living during the marriage,
  • Each spouse's age and financial position, including the ability to get and keep a job, and
  • Balance of hardships between the spouses.

In any outcome where only one spouse (Spouse A) gets the house, they will likely have to pay for Spouse B’s equity in the house. It might be that Spouse A gives up their rights to other marital property that Spouse B could keep. The spouses might also agree to a payment plan between them. 

If there is still a mortgage on the house, it may be refinanced under Spouse A’s name only if they qualify.  The court may order the sale of the house, and if a balance remains, may divide it equitably between the spouses.  Learn more about debt and creditors in a divorce. 

Like other property, the judge will first consider whether the car is marital or non-marital property in a divorce case. If a spouse bought the car, paid off any car loans before the marriage, and paid for repairs and maintenance with non-marital funds, the car will be considered non-marital property. It will stay with this spouse after a divorce.

If the car is considered marital property, the judge will look at different factors in determining who gets the car:

• If there are multiple cars or just one;
• Who typically drives the car and for what reason (job, child care);
• The current value of the car; and
• Whether there is a car loan still being paid, and who has the financial ability to pay it. Learn more about debt and creditors in a divorce.

If there is only one car and it’s given to one spouse, the judge will include that value in allocating the other property in the divorce. The other spouse may be given other money or property instead.

If the car is paid off and given to a spouse whose name is not on the title, the receiving spouse will need to transfer the title to their name with the Illinois Secretary of State after the divorce is finalized.

Learn more about how retirement accounts are allocated in a divorce. 

Like property and assets, a judge will first consider whether the debt is non-marital or marital. Debt taken on before the marriage may be considered non-marital debt and remain with that spouse. 

Debt that the spouses acquired together or separately that was incurred during the marriage may be considered marital debt, which the judge can then divide in the divorce. This may include loans taken out (bank, car, student) or bills. Like property, the debt is presumed to be marital unless there is evidence or documentation to show it’s non-marital.

In dividing the marital debt, the judge will consider which spouse incurred the debt, who benefited from it, and who has the financial ability to pay it. Like property, debt is divided in an “equitable” way. This means the split will not necessarily be half and half, but rather what is fair.

No. Creditors have a contract with the spouses that cannot be changed through a divorce decree. No matter how the judge in the divorce allocates a debt, the original loan with the creditor remains.

An example may be when the spouses jointly take out a loan to buy a car for Spouse A.  In the divorce, the judge awards both the car and the car debt to Spouse A. Spouse B remains financially responsible for the car loan. If Spouse A stops paying for the car, the creditor can go after Spouse B for the payment. Spouse B’s credit can be affected if they do not pay. Options at that point may include:

• Spouse A can apply to refinance the loan so that the loan is in their name only if they are eligible;
• Spouse B may include a clause in the divorce decree that Spouse A reimburse them if they are forced to pay the creditor (indemnity); or
• Use marital funds to pay off the car loan and transfer the title to Spouse A alone, with other assets given to Spouse B to balance the overall property division.

Learn more about dividing property and assets at the Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5/503.

For simpler, less complicated cases where there is not much property or debt, a lawyer may not be necessary. For instance, spouses who do not own a house or have substantial debt and who agree on the division of property may be able to do this with minimal help from a lawyer.

However, a lawyer is a good idea when there is substantial property or debt involved. Deciding whether the property or debt is non-marital or marital may be hard, as is computing the current value. If property is given to Spouse A, but Spouse B’s name is on the debt taken to pay for that property, Spouse B may want to look at additional legal options and protections.

In addition, a lawyer is recommended in situations where:

• The divorce is contested: the spouses cannot come to an agreement on major issues involving children, property, or debt;
• One spouse is represented by a lawyer: a pro se spouse is at a distinct disadvantage in a divorce if the other spouse is represented by a lawyer; or
• There is domestic violence involved in the relationship.

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