Question By: Divorce can be a difficult and emotional process, especially when it comes to dividing property. In Illinois, the process of dividing property is governed by the Illinois Marriage and Dissolution of Marriage Act (IMDMA). Under the IMDMA, property is divided based on the principle of equitable distribution.
Equitable Distribution
Equitable distribution means that property is divided in a manner that is fair, but not necessarily equal. The court will take into account a number of factors when dividing property, including:
• Length of the marriage
• Each spouse's contribution to the acquisition, preservation, or increase in value of marital property (including any non-marital property used for marital purposes)
• Each spouse's needs, including custody of any children
• Each spouse's earning capacity and ability to acquire property in the future
• Any prenuptial or postnuptial agreements
• Any dissipation of marital property by either spouse
• Any tax consequences of the property division
Classification of Property
Before property can be divided, it must first be classified as either marital property or non-marital property. Marital property is generally any property acquired by either spouse during the marriage, regardless of whose name is on the title or who paid for it. Non-marital property is generally any property acquired by either spouse before the marriage, as well as any property acquired by gift or inheritance.
It is important to note that the classification of property is not always straightforward. For example, if one spouse uses non-marital funds to make improvements to a marital home, the non-marital funds may become commingled with marital property, making the classification more complicated.
Property Division Process
Once property has been classified, the court will begin the process of dividing it. The court will consider the factors listed above and make a determination as to what is fair and equitable. The court may divide property in a number of ways, including:
• Awarding property to one spouse outright
• Selling property and dividing the proceeds
• Awarding one spouse a greater share of property in exchange for other assets
• Dividing property in kind (for example, dividing a collection of art or jewelry)
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