How Property is Divided in a Divorce

Divorce:  Property Division

When parties go through a divorce, the first major thing the Court will decide are issues relating to the parenting of the child or children.  If the parties do not have any children, or once the parenting issues are decided, the Court will then turn to the financial side of the divorce.  While child support and spousal support do need to be determined, a more complex issue arises when the Court is tasked with dividing the marital estate.

What is the Marital Estate

The marital estate is the total value of all assets determined to be marital minus all debts determined to be marital.  This means the Court must first determine which assets are “marital.”  A general rule of thumb is that all assets acquired during the marriage, regardless of title, are marital assets that make up the marital estate.  There are various exceptions, which an experienced divorce lawyer or family attorney can explain in further detail.

Marital debts are those debts incurred during the marriage for a normal marital purpose, including most commonly mortgage debts and auto loan debts.

Determining the value of the marital estate can become complicated as the liquidity of the marital assets become more complex.  Calculating the value of a bank account is straight forward; calculating the value of a business is not.  In many cases it makes sense to hire an expert to value a business in a divorce case, as reaching an accurate valuation is necessary before the Court can divide property.  Tax consequences also must be considered when dividing retirement accounts.

Once the value of the marital estate is determined, the Court will then divide it equitably.  Many times the Court determines an equal division of the marital estate to be equitable, but the law only requires the division to be equitable, not equal.

There are a number of factors the court can consider in determining whether the division of marital property is equitable.  Contact a divorce lawyer or family attorney at our Lombard or Plainfield offices for a free consultation.  Our attorneys are able to meet in person or discuss your options via phone if it is more convenient for you.

For more information about marital property in divorce cases, see section 5/503 of the Illinois Marriage and Dissolution of Marriage Act.

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