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Asset Division in Divorce: A Fair Approach to Splitting Assets

Updated: Jun 22

Divorcing couples often grapple with the question. How will our assets be fairly divided? This article demystifies asset division in divorce, providing clear guidance on equitable distribution laws in Illinois.


We explore the critical factors that dictate whether assets are split equally or based on each partner’s circumstances during the divorce process, including property division and financial terms. Practical and straightforward, this guide prepares you for the essential steps in navigating divorce asset division, without overwhelming legal jargon.


Illinois Asset Division Key Takeaways


  • Equitable distribution in Illinois divorce law aims for fairness by considering each spouse’s contributions and circumstances, rather than an equal 50/50 split, taking into account factors like income, health, and financial needs.

  • A comprehensive division of assets involves classifying assets as either marital or non-marital, accurately appraising their value, and drafting a legally binding property settlement agreement to outline division terms.

  • Special considerations are required when dividing complex assets such as retirement accounts, pensions, business interests, and investments, as they often involve intricate valuation methods and legal implications.

financial advisor and woman reviewing investments

Understanding Equitable Distribution in Illinois


In Illinois divorces, the division of assets is governed by equitable distribution rather than community property. This means that instead of an automatic 50/50 split seen in some community property states, asset division strives for a fair allocation based on each party’s unique contributions and circumstances. In community property states, the community property system presumes joint ownership of marital property, and assets are typically divided equally. Factors taken into account include:


  • income levels

  • health status

  • job skills

  • financial requirements


Both spouses involved. The objective is not just to divide the property, but to ensure that the outcome fairly mirrors what each spouse has brought into and requires from the dissolution.


It’s crucial to understand how marital assets differ from non-marital properties before tackling their actual distribution since this distinction greatly affects asset splitting outcomes. Equitable distribution also takes several elements under consideration such as individual economic situations and any existing premarital agreements between parties. We will now examine these details more closely.


Marital vs. Non-Marital Assets


Determining the classification of property as either marital or separate is a crucial initial step in dividing assets during a divorce. In Illinois, ‘marital property’ encompasses all assets acquired by both spouses from the marriage’s commencement until its dissolution, excluding items like gifts and inheritances received individually or exchanges for properties owned prior to marriage.


Conversely, ‘separate property’ consists of those possessions accumulated before entering into marriage, along with individual gifts or inheritances, and any assets exchanged for such non-marital resources. If a house is considered a spouse's separate property, that spouse will usually retain it.


The distinction between these two categories can often become murky when separate property gets mixed with marital assets or if it is routinely utilized for joint purposes within the marriage. When this occurs and there are difficulties discerning which category the asset falls under, an Illinois court defaults to classifying them as part of marital property. This contrasts with states that operate under community property systems where typically everything acquired during the union is split evenly upon divorce.


As evidenced by these complexities surrounding asset categorization in divorces, determining what constitutes martial versus non-marital belongings holds significant importance for equitable distribution among ex-spouses.


Factors Influencing Equitable Distribution


Having established the difference between separate property and marital assets, we can now delve into how these assets are allocated upon divorce. In Illinois, equitable distribution is employed to divide properties. This approach takes into account what is just based on the particulars of each case. Key considerations include the length of marriage, each spouse’s contribution (financial or otherwise), as well as any existing prenuptial or postnuptial agreements that may guide the division.


When a court adjudicates on property division during a divorce, it examines several elements.


  • The duration of matrimony

  • Each partner’s age and physical health status

  • Both financial contributions by spouses and non-monetary support provided throughout their union

  • The current economic situation for both individuals which encompasses income levels and fiscal requirements

  • The lifestyle maintained while married

  • Any personally owned separate property held by either party

  • Any accord mutually reached regarding asset separation


Comprehension of these aspects is crucial to ensure an equitable settlement in line with expectations from such divisions.


The Division Process: Marital Estate Valuation

man reviewing investments

In the progression of dividing assets during a divorce, once all items have been categorized and key factors are recognized, we proceed to assess the value of the marital estate. This entails inventorying all property along with debts associated with it, evaluating their worth accurately, and formulating a property settlement agreement that reflects this assessment. Rather than simply assigning monetary values superficially, this evaluation demands an in-depth look at high-value properties for precise estimation within the marriage’s financial context.


When tackling complex valuations that involve either substantial or numerous assets, specialized experts like forensic accountants and Certified Divorce Financial Analysts may become necessary. Their expertise ensures that every item is valued correctly so that an equitable distribution can be reached through your settlement agreement while minimizing future conflicts regarding asset division.


Prior to immersing ourselves into intricate details of valuation methods for these items—inclusive not just of appraisal but also consolidation—it is crucial first to create an exhaustive catalog encompassing each piece of both assets and related debts owed by parties involved in said divorce. Following which detailed steps towards establishing individual values will be taken thus allowing us to draft a conclusive property settlement reflecting true estimates gathered throughout our thorough examination process.


Identifying All Assets and Debts


In the context of a divorce, it is essential to compile an exhaustive inventory of assets and debts. This enumeration should encompass items such as:


  • Property

  • Automobiles

  • Items of personal property

  • Financial investments


One should also incorporate relevant particulars like account identifiers and present-day valuations. This process isn’t merely about cataloging possessions. Rather, it’s aimed at presenting a full depiction of one’s financial standing for the purpose of reaching an equitable distribution.


Accounting for all communal or individual debts is just as critical. The specifics should be documented—including things such as account identities and outstanding amounts—for obligations including but not limited to:


  • Mortgage dues

  • Credit card liabilities

  • Educational loans

  • Personal borrowings


Marital funds used for mortgage payments can affect the division of the marital home, as they may entitle the other spouse to part of the increase in the property's value.

By diligently listing every asset and liability, you bolster your argument in court while ensuring thoroughness during the division of property phase within divorce procedures.


Appraising Asset Value


The appraisal of asset value is next in line, which entails establishing the fair market value for each asset ranging from real estate to personal items. For high-value assets like homes and collectibles, professional appraisals are frequently needed. In the case of businesses, specific methodologies are applied to assess the worth of their assets while resources such as Kelly Blue Book or National Automobile Dealers Association provide assistance in evaluating vehicles’ fair market values.


When it comes to complex assets, employing forensic accountants might be essential for a precise valuation. They possess specialized skills necessary to examine a business’s assets comprehensively including its debts, profitability and potential growth in value. No matter how complex your assets may be, securing an accurate appraisal is vital for ensuring that there will be an equitable distribution.


Crafting a Property Settlement Agreement


Identifying and valuing all assets and liabilities marks the prelude to devising a property settlement agreement. This essential, enforceable contract delineates the distribution of marital estate — both assets and debts — between spouses. To formulate this pact, couples may opt for direct negotiations or enlist professional mediators’ assistance. Occasionally, attorneys are engaged merely to draft or scrutinize the arrangement.


Creating an equitable and detailed property settlement is no trivial pursuit. It demands effective communication, skillful bargaining, and deep insight into the collective marital property involved. Under proper advice and support throughout this process lies a crucial milestone that can pave the way for justly shared resources while facilitating a more stable financial emergence following divorce proceedings.


Special Considerations for Dividing Specific Assets

stock market investments

The division of assets may appear to be a straightforward process, but certain types of financial assets require extra attention. Complicated assets such as pensions, retirement plans, business interests, and investments present unique challenges during the division phase due to their intricate valuation processes, potential tax consequences, and complex ownership rights.


In subsequent sections we will examine these specific kinds of assets along with their particular considerations in depth. We’ll discuss elements like the function that Qualified Domestic Relations Orders (QDRO) play in splitting up retirement savings as well as different strategies for distributing marital property including real estate and commercial ventures. This information aims to prepare you for dealing with the nuances involved when allocating distinctive categories of financial holdings.


Retirement Accounts and Pensions


Dividing pensions and retirement assets can be particularly complex during a divorce. To ensure an equitable distribution of these savings, a Qualified Domestic Relations Order (QDRO) is used to allocate portions of the retirement funds to an ex-spouse as dictated by the divorce settlement.


The QDRO is a specialized court order that specifically addresses the division of employer-sponsored retirement accounts such as 401(k)s and 403(b)s. This type of order becomes necessary in instances where there’s either a marital dissolution or legal separation and ensures that property division amongst spouses remains fair. For proper allocation of benefits from any given retirement plan, it’s required for the former spouse to submit this document directly to the plan administrator.


In Illinois, if someone has established retirement accounts before their marriage but continues contributing towards them after getting married, those contributions are considered part of marital property when divorcing. As such, whatever growth or increase observed within pension plans or other types of retirement accounts over the course duration should be fairly split between both parties since they’re classified under marital assets once accrued in matrimony.


Handling the Marital Home


In the course of a divorce, addressing the division of the marital home—a major asset—is critical. If one spouse opts to buy out the other’s interest in the house, they must then bear all associated costs themselves, which can pose a financial challenge if their income significantly decreases after the split. Alternatively, both parties might consider co-ownership under mutually agreed-upon conditions or selling it outright.


Selling could emerge as an ideal solution when retaining ownership is financially unviable for either party involved. Should this path be chosen, any revenue gained from selling at fair market value would be allocated between both individuals following guidelines established by their divorce settlement agreement. Precise and thoughtful deliberation is essential regardless of how spouses proceed with managing property concerns. Seeking professional evaluations can play an integral role in establishing accurate valuation within these processes.


Business Interests and Investments


The process of splitting business interests and investments adds an intricate layer to the division of assets. To determine the value of these assets, particularly for businesses, specialized valuation techniques are often required. The presence of intellectual property can complicate this evaluation because standard business valuations may not capture its distinct elements, thus necessitating more tailored methods.


In instances where there’s a need to accurately assess intellectual property within a divorce context, drawing on the skills of forensic accountants or other experts in asset valuation becomes crucial. Ensuring that all parties have a comprehensive understanding regarding these challenges is key to equitable distribution during divorce settlements so that complex assets like business interests and properties are equitably divided according to their true worth.


Debt Division: Fairly Allocating Marital Debts

financial brokerage team

During a divorce, both property and debts are subject to division. Commonly, each spouse is accountable for an equitable portion of the joint debt—usually equal to approximately half. This distribution follows the principle that while divisions should be fair, they may not always be exactly equal.


Determining what constitutes marital versus separate debt can present complexities. Also challenging is dealing with shared joint debts. Subsequent sections will address these issues in depth as we dissect the intricacies involved in splitting up financial obligations during a divorce and provide guidance through this potentially complicated process.


Distinguishing Between Marital and Separate Debt


Debt that has been incurred during the marriage is often deemed marital debt, and Both spouses are considered liable. This encompasses financial obligations like credit card debt, which can fall on both partners even if one spouse accumulated it without the other’s awareness. Conversely, separate debts refer to those incurred prior to entering into marriage or those classified as personal gifts or inheritances. This also includes individual debts such as a student loan taken for only one spouse’s education.


It is vital in the process of dividing debt to recognize whether debts belong to the marital category or should be categorized separately. By doing so, you ensure an equitable distribution of these liabilities and diminish chances of disagreement in future proceedings.


Responsibility for Joint Debts


Dividing joint debts is a complex part of separating finances in a divorce. Both spouses are liable for these shared obligations, regardless of which party originally took on the debt. Tackling joint credit and loan accounts throughout the process of divorce presents substantial difficulties and typically requires either collaboration between both individuals or assistance from experts to handle properly.


In instances where parties involved in a divorce fail to agree on how to manage their joint credit accounts and loans, there’s a danger that nothing will be done about them. This lack of action can lead to both parties being equally held accountable for outstanding debts. Consequently, it’s crucial for anyone going through a divorce to fully grasp the responsibilities tied with any shared debts they have as well as understand the potential challenges they pose—to ensure they safeguard their financial future post-divorce.


Protecting Your Financial Future Post-Divorce


Dividing assets and debts during a divorce extends beyond merely reaching an equitable agreement. It is integral to safeguarding your financial well-being after the separation. It’s imperative to take measures that reposition your financial standing as an individual, which helps fend off subsequent monetary issues and secures personal economic autonomy. These measures encompass disentangling joint accounts, handling credit responsibilities, recalibrating loans, and revisiting your fiscal ambitions.


We are going to explore these topics in greater depth moving forward. Our discussion will include guidance on uncoupling joint bank accounts as well as strategies for managing both credit and loans post-divorce. This information aims to equip you with the tools necessary for smoothly transitioning through this phase while preserving your economic self-reliance.


Separating Joint Bank Accounts


The initial move towards financial autonomy after a divorce includes disentangling oneself from joint bank accounts by closing them and opening new personal ones. It’s imperative to verify that the balance in any joint account is depleted to evade additional fees or charges before closing.


If both parties consent, it is possible for one spouse to be extracted from a joint bank account, which makes its termination unnecessary. Prioritize revising all direct debits like bills and subscription services tied up with the shared bank account before shutting down these jointly held accounts. This process of dividing the banking arrangements allows for continuous access to fiscal services and marks an important step on the path toward financial self-sufficiency post-divorce.


Credit and Loans After Divorce


Handling credit and debt post-divorce is a critical task that ensures the protection of your financial well-being. Jointly managing credit card and loan accounts should not be done in isolation during this time. It’s essential to either work collaboratively with your former spouse or seek professional assistance. Ineffectively dealing with these shared accounts may result in being equally liable for any debts, despite what the divorce decree states.


Your economic outlook extends beyond just settling the terms of your divorce. It entails strategic planning for years ahead, re-evaluating monetary objectives, and carving out an economically self-sufficient path forward. To achieve this might involve seeking new job opportunities that offer improved pay and benefits or consulting with a financial advisor who can help reconstruct effective fiscal strategies.


When You Need Legal Assistance Hire A Divorce Attorney

lady justice statue in law firm

In the midst of a divorce, it’s quite apparent how daunting it can be to sort through the division of marital assets. Acquiring an attorney with expertise in divorces is vital because they:


  • Have a deep understanding of legal statutes

  • Offer impartiality during proceedings

  • Defend your entitlements

  • Avert potential errors

  • Bring potent negotiating skills that are indispensable for intricate property settlements.


An attorney’s involvement offers several advantages throughout the process of divorce by:

  • Guaranteeing proper execution and completion of necessary documents related to closing and ancillary matters, which safeguards interest in properties while preventing mishaps associated with inadequate distribution.

  • Assisting in unveiling any concealed or unreported assets by a spouse to assure an equitable sharing.

  • Supplying advice and backing where there’s complexity involving combined assets and liabilities.

  • Aiding negotiations while representing your utmost interests especially when engaging directly with the other spouse is either ineffective or perilous.


Irrespective whether you have multifaceted financial concerns or if direct negotiation poses risks, enlisting legal assistance remains highly recommended.


Selling Marital Property In Illinois Divorce

home sale sign

In the course of a divorce, it may become necessary to dispose of shared property. Within Illinois, the courts have considerable influence over how assets are divided. The sale of jointly owned property can be mandated by a judge either before the case concludes or as part of its resolution. There are various ways to handle the distribution of real estate during divorce proceedings. These include one spouse buying out the other’s share or selling off the asset and splitting any proceeds earned.


Nevertheless, divesting oneself from joint marital assets is not without its complexities. To do so effectively requires an accurate assessment of what said properties are worth, adept negotiating capabilities, and often enlisting professional assistance from a seasoned real estate agent is beneficial. When approached properly, liquidating marital assets has potential benefits like providing capital that’s crucial for both parties looking to rebuild their lives post-divorce while also ensuring economic stability moving forward.


Division of Assets Summary


The process of dividing assets in a divorce, with its intricacies like the principle of equitable distribution and specific considerations for retirement accounts and business interests, can seem overwhelming. By equipping yourself with proper understanding and advice, you can effectively steer through this phase to secure an equitable division of your possessions.


It’s important not just to focus on splitting current holdings, but also safeguarding your long-term financial well-being and ensuring self-sufficiency after the separation. Empower yourself with information, reach out for expert counsel when needed, and take charge of shaping your fiscal destiny post-divorce.


Frequently Asked Questions


What is equitable distribution in Illinois?


In Illinois, the goal of equitable distribution is to achieve a just division of assets in divorce proceedings, considering each spouse’s contributions and circumstances rather than splitting assets equally.


What is the difference between marital and non-marital assets in Illinois?


In Illinois, assets acquired during the marriage are considered marital property with some exceptions. On the other hand, non-marital assets consist of property obtained before entering into marriage, as well as items received through inheritance or gifts, or those purchased in exchange for non-marital assets.



How is the value of assets appraised in a divorce?


The value of assets in a divorce is appraised through professional appraisals and expert guidance, with specialized methods used for establishing the value of businesses.


How are retirement assets divided in a divorce?


A Qualified Domestic Relations Order (QDRO) is utilized to split retirement assets during a divorce, and it is the responsibility of the former spouse to submit this order to the plan administrator in order to arrange for the distribution of benefits.


What is the role of an experienced divorce attorney in the asset division process?


A skilled divorce lawyer is vital in the division of assets, offering essential legal expertise, impartial advice, protection of rights and helping to prevent errors. Their strong negotiation abilities are especially important during a complex property settlement.


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