Illinois is an equitable distribution state, which means marital property will be divided “fairly and equitably”. Although property is not necessarily always divided equally or “50/50”, that is the result in the majority of cases. Marital property is generally classified as all property acquired by either spouse during the marriage. Property acquired by either party prior to the marriage or during the marriage by inheritance or by gift is considered non-marital property (discussed in greater detail below).
All pension benefits, retirement accounts and investment accounts acquired by either spouse during the marriage are presumed to be marital property, regardless of which spouse participates in a pension plan or other retirement plan or account, unless these benefits were acquired by a method listed below as non-marital property.
All stock options granted to either spouse during the marriage, whether vested or non-vested or whether their value is able to be determined, are presumed to be marital property, unless they were acquired by a method listed below as non-marital property.
Non-marital property (which the court has no power to divide) is defined as follows:
- Property acquired by gift, legacy or descent;
- Property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, legacy or descent;
- Property acquired by a spouse after a judgment of legal separation;
- Property excluded by valid agreement of the parties;
- Any judgment or property obtained by judgment awarded to a spouse from the other spouse;
- Property acquired before the marriage;
- The increase in value of property acquired in any of the above methods, and;
- Income from property acquired by any of the above listed methods, if the income is not attributable to the personal effort of a spouse.
If non-marital property is commingled with marital property is may be transmuted or reclassified as marital property.
The division of marital property is divided, without regard to marital misconduct, in just proportions with consideration of the following criteria:
- The contribution of each party to the acquisition, preservation, or increase or decrease in value of the marital or non-marital property;
- The dissipation by each party of the marital or non-marital property assigned to each spouse;
- The duration of the marriage;
- The relevant economic circumstances of each spouse when the division of property is to become effective, including the desirability of awarding the family home, or the right to live there for reasonable periods, to the spouse awarded custody of the children;
- Any obligations and rights arising from a prior marriage of either party;
- Any antenuptial agreement of the parties;
- The age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each party;
- The custodial provisions for any children;
- Whether the apportionment is in lieu of or in addition to maintenance;
- The reasonable opportunity of each spouse for future acquisition of capital assets and income, and;
- The tax consequences of the property division upon the respective economic circumstances of the parties.
If the court deems it necessary to protect and promote the best interests of the children, it does have the authority to set aside a portion of the jointly or separately held estates of the parties in a separate fund or trust for the support, maintenance, education, physical and mental health, and general welfare of any minor, dependent, or incompetent child of the parties.