When it comes to property division during divorce, Illinois is an equitable distribution state. Contrary to what many people may believe, however, equitable distribution does not necessarily mean an equal division of property. Rather, the appropriate measure is that the division is found to be equally fair to both parties.

Many factors can affect who is entitled to what. For instance, whether an asset is considered a marital or separate asset can determine who may be eligible to keep it. We recently discussed the impact that this can have on a divorce settlement on Aug. 29 (“Harold Hamm and wife in court concerning division of property”). Their dispute, in particular, addresses how one particular asset was accrued during the course of the marriage.

Additional considerations may include the overall value and tax implications of the assets or property that each spouse wishes to keep. For instance, if one spouse gets the house, financial obligations may also be required in order to pay certain taxes or to maintain the home. As such, that spouse may not have to take on as much marital debt as the other spouse in order to achieve a fair division of property. 

While these examples may seem cut-and-dried, determining exactly who should get what can be more complicated than that. For instance, if one spouse consistently used a vehicle during the course of the marriage, but their soon-to-be ex actually purchased the vehicle before the marriage for personal use, who gets the vehicle may not be clear. As equitable distribution mandates, each party in an Illinois divorce should be awarded an amount that is fair and equal to their personal situation. However, if one individual insists upon an equal split, and the other party objects, mutual agreement through either negotiations or mediation with an impartial third-party may not be enough to settle the division of property. Some individuals may have to take their case forward to the courts, where a judge will make the final decision concerning the divorce settlement.

Source: divorcesource.com, “Illinois Property Division“, , Sept. 28, 2014