Factors That Affect Asset Division in a Divorce

Updated on May 6, 2024
Updated: April 18, 2024

Navigating the complexities of asset division during a divorce can be daunting, especially when considering the unique factors that influence the process in Illinois. From marital property to non-marital assets, understanding the various elements that impact asset division is crucial for achieving a fair and equitable outcome. Factors such as the duration of the marriage, each spouse's financial contributions, and the presence of prenuptial agreements can significantly affect how assets are divided.

At Tommalieh Law, we recognize the importance of addressing the specific factors that pertain to your divorce case. Our experienced team of family law attorneys is dedicated to guiding you through the asset division process with compassion and expertise.

Whether you're concerned about protecting your financial interests or ensuring a favorable outcome, we're here to provide the support and advocacy you need. Contact us today at (708) 232-0017 to schedule a consultation and take the first step toward securing your future financial stability.

What Assets Are Typically Split in a Divorce?

During a divorce, various assets accumulated during the marriage are typically subject to division between the spouses. These assets may include:

  1. Marital Home: The primary residence where the couple lived together during the marriage.
  2. Real Estate Property: Other properties, such as vacation homes or rental properties, acquired during the marriage.
  3. Financial Assets: This includes bank accounts, retirement savings, stocks, bonds, and other investments acquired during the marriage.
  4. Personal Property: Household items, furniture, vehicles, electronics, jewelry, and other personal belongings acquired during the marriage.
  5. Business Interests: Any ownership interests in businesses or professional practices acquired during the marriage.
  6. Pension and Retirement Accounts: Accumulated retirement benefits, pensions, 401(k) plans, IRAs, and other retirement accounts earned during the marriage.
  7. Debts: Debts incurred during the marriage, such as mortgages, credit card debt, student loans, and other liabilities, may also be subject to division.
a man splitting a model home and money

It's essential to note that the specific laws governing asset division vary by jurisdiction, and certain assets may be classified differently based on whether they are considered marital or separate property. Consulting with a knowledgeable family law attorney can help spouses understand their rights and obligations regarding asset division during divorce proceedings.

Understanding Marital and Separate Property

In Illinois divorce cases, the property is typically divided into two categories: marital property or community property and separate property. This categorization helps the judge to determine who should walk away from the marriage with which assets.

Marital Property

Marital property, also referred to as community property, is anything that was acquired over the course of the marriage. Legally, this means it belongs to both people and it does not have a default person that it will go to.

Learn More: What to Expect From the Illinois Divorce Process

To ensure fair division, an experienced divorce attorney along with an expert in financial issues will conduct an appraisal of the assets. Then they will do their best to come up with an agreement that divides the marital property in an equitable distribution.

Separate Property

Separate property is anything that was owned before the marriage took place. An example of this could be real estate properties that one person purchased before the start of the marriage.

During the divorce proceedings, these assets will typically be returned to the person who originally owned them. This is especially true in high-asset divorces where a prenup is usually involved. 

Factors Affecting Property Division in a Divorce

Several factors can influence how property is divided during a divorce. These factors may vary depending on the jurisdiction and the specific circumstances of the case. Some common factors affecting property division include:

State Laws

Each state has its own laws governing property division in divorce cases. Some states follow community property laws, where marital property is divided equally between spouses, while others follow equitable distribution laws, where property is divided fairly but not necessarily equally.

Length of Marriage

The duration of the marriage often plays a role in property division. In many cases, longer marriages may result in a more equitable distribution of assets compared to shorter marriages.

divorce forms, a gavel, and wedding rings on a desk

Contributions to the Marriage

Courts may consider each spouse's contributions to the marriage, both financial and non-financial when dividing property. This includes factors such as income, homemaking duties, child-rearing responsibilities, and career sacrifices made for the benefit of the family.

Earning Capacity

The earning capacity and future financial prospects of each spouse may also be taken into account. For example, if one spouse has significantly higher earning potential than the other, they may receive a larger share of the marital assets to offset potential financial disparities post-divorce.

Health and Age

The health and age of each spouse may be considered, particularly if one spouse requires additional financial support or has limited earning potential due to health issues or advanced age.

Marital Misconduct

While less common, instances of marital misconduct such as infidelity, substance abuse, or financial irresponsibility may impact property division in some jurisdictions.

Prenuptial Agreements

One of the factors that can have the biggest impact on the division of property during the divorce process is a prenuptial agreement. This agreement can contain many different things and is customized for each couple. However, the most common agreements for it to contain are the division of assets, marital estate, marital debts, marital assets, as well as any separate property or assets that were acquired before the marriage.

FAQ: What Should You Do Before Filiing for Divorce?

Tax Implications: The tax consequences of different property division scenarios may also be considered. For example, certain assets may have tax implications upon transfer or sale, which could affect their division.


One final relevant factor that can have a massive impact on how real estate is divided is whether or not minor children are involved. For example, if the family was living in a house together then the parent who has primary child custody will likely be able to stay in the house with the children. This is to help ensure that the kids have a stable environment even during such a tumultuous time. 

It's essential for individuals going through a divorce to seek guidance from an experienced family law attorney who can help them understand how these factors may apply to their specific situation and advocate for their best interests during property division negotiations or court proceedings.

Ways Marital Property Can Be Divided in a Divorce

Within the court setting, there are a few different ways that your property could be divided. In a contested divorce, personal property will most likely be divided by court order since the two parties are unable to come to an agreement. In an uncontested divorce, a consent judgment is usually used where the couple comes up with their own property division agreement, and the judge

Asset Division by Court Order

During the end of a long-term marriage, there is not always a mutual agreement that the two parties come to. In these cases, the division of both marital assets and marital debts is handled by the court. They will bring in real estate appraisers and other professionals to examine everything from investment accounts and retirement accounts to community property. 

a man splitting a model of a house with a gavel

Considering the financial circumstances of both parties, the court will then come up with an order that ensures the equitable distribution of all marital assets and marital property. 

In the case of a collaborative divorce, the debt division is handled a little bit differently. With the help of their legal representation, both parties will come to a property settlement agreement considering joint debt, economic circumstances, community property rules, bank accounts, and additional factors. 

Don't Settle Without Consulting Us

Do not settle for a law firm or divorce lawyer that does not prioritize the final outcome of your divorce settlement. From retaining property during divorce to fighting for your marital assets in divorce, we will walk with you every step of the way. At Tommalieh Law, our Orland Park divorce attorneys fight for an equitable divorce judgment in every case that we take on. 

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