Property Division In A Divorce

Updated on February 15, 2021
Updated: October 5, 2023

When a couple gets divorced, one of the primary concerns apart from children is how to divide property and debts shared by the couple. Who gets the marital house? Who gets the dog? The answer depends on several factors, including Illinois divorce laws. 

Below are some answers to the most frequently asked questions regarding property division in a divorce.

What is Marital and Non-Marital Property?

In Illinois, marital property is any property that was accumulated during the marriage and non-marital property is the property that one spouse had before the marriage, or gained during the marriage through gifts or inheritance. 

Non-marital property remains the property of one party, while the marital property has to be divided between the parties. Analyzing what property is marital and what’s nonmarital is complex. The family law lawyers at Tommalieh Law can help you determine whether you have non-marital property and protect your interests and rights in that property. 

So what’s the difference between marital and non-marital property? The non-marital property includes property gained:

  • Before the marriage, which remains separate and in the owner’s name only.
  • By gift, including gifts from one spouse to another, or
  • By inheritance before or during the marriage.

If there’s a family business involved or if you and/or your spouse is a top executive who is compensated via stock options and retirement benefits; this can make your divorce financially complicated. You’ll need the expertise of an experienced divorce lawyer who has handled the valuation and division of such assets in the past.

How Are Marital Assets Divided in a Divorce in Illinois?

Typically, states follow one of two procedures when dividing marital property after a divorce--a community property or equitable division approach. Illinois, like most states, is an equitable distribution state. This means the property division is fair, but that doesn’t mean equal.

Instead of using a 50/50 split, Illinois family court judges consider all relevant factors when deciding what kind of property distribution is fair. These include:

  • The length of the marriage.
  • The age, health, and stage of life of each spouse.
  • If either spouse is receiving alimony.
  • The employability, occupation, and vocational skills of each party.
  • The value of the property assigned to either spouse.
  • Either spouse’s debts and economic needs.
  • Either party’s opportunity for future acquisition of income and assets.
  • Each spouse’s obligations from a previous marriage, such as child support for other children.
  • Each spouses’ contribution to the acquisition, preservation, or increased value of the marital property. This includes contributions as a homemaker.
  • Each party’s contribution to the decrease or waste of marital or separate property.
  • The financial situation of each spouse.
  • The child custody arrangement for any children of the marriage.
  • The tax consequences of the property division and other relevant factors.

Often, couples agree on how to divide everything on their own, while other times they seek the guidance of family law attorneys or a mediator to help negotiate a settlement. Spouses who can’t resolve property division matters outside of court will end up going to trial, and ultimately a family court judge will decide all property issues in their divorce.

property division in a divorce

Can You Kick Your Spouse Out of The House in Illinois?

There are two ways you can force your spouse to leave the marital home in Illinois. You can file a petition for exclusive possession of the house under the Illinois Marriage and Dissolution of Marriage Act (IMDMA). The family law court may temporarily evict your spouse from the marital house during the divorce proceeding under the IMDMA if you prove that your or your children’s physical or mental health or well-being is being jeopardized by your spouse remaining in the marital home. 

The second way is by obtaining possession of the marital house during divorce proceedings by filing for an order of protection under the Illinois Domestic Violence Act (IDVA). To get this order, you must prove harassment or threat of future abuse from your spouse. Also, the court will award temporary exclusive possession of the home if your risk of threat outweighs the hardships your spouse has to go through by leaving the house.

Typically, family law courts presume that the risk of harm to the petitioner is less than the other spouse’s hardship, thus many believe that the IDVA readily grants a spouse exclusive possession of the marital house than the IMDMA.

Finally, it's crucial to note that the temporary eviction orders don’t affect the titling of the house or which spouse will ultimately get the house in the division of marital property.

Are Separate Bank Accounts Marital Property?

A recent survey by the Bank of America shows that younger generations, especially millennials, have kept separate bank accounts even after getting married. Does keeping separate bank accounts truly keep money separate during the marriage? 

The law is very clear on this: all property accumulated during the marriage is considered marital property. Thus, even though you and your spouse have separate bank accounts and pay bills separately, all income and property acquired during the marriage is considered marital property and is subject to division.

Can I Legally Stay In the Marital Home During My Divorce?

Yes, you can legally stay in your marital home during your divorce process unless there’s a restraining order or other court order requiring you to stay away from your children, spouse, or the property.

However, everyone will have different comfort levels regarding staying in the marital home during the divorce proceedings. Many spouses leave the marital home to avoid any additional conflict or adversarial confrontations. But if you wish to stay in the marital home during your divorce, you may do so. 

You have every right to stay in the marital home, especially if your name is listed on the title of that property. So, unless there’s evidence of domestic violence, criminal activity, or harassment, you have the right to stay in your house during the divorce process.

Family Lawyers Handling Property Division In A Divorce

Often, property division is a contentious part of a divorce. Depending on how long the spouses were married and the assets and property the couple owns, it can become a complex task to identify and value the spouses’ marital assets. Thus, sorting through the complexities surrounding how marital property should be divided requires the legal skills and persistence of an experienced Orland Park family law attorney. 

At Tommalieh Law, our Cook County family law attorneys will help you evaluate the marital and non-marital property to make sure you come out of your divorce with a favorable outcome. Our team of experienced and dedicated family law attorneys will help you secure your financial future.

To schedule a free initial consultation, contact us today at (708) 232-0017, or chat with us online to learn how we can help.

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