Dividing Property in Divorce
Many divorcing spouses believe the common misconception that during divorce, all property is divided equally between the parties. In some states, this 50/50 style of property division is called community property division. However, Illinois state law created a different standard, termed equitable distribution, under which marital property is divided. Marital property is usually all property acquired by either or both spouses during the marriage. Using equitable distribution, both spouses are entitled to a fair, but not necessarily equal, portion of marital property based on their contributions to the marriage. These contributions can include financial support, emotional support, taking care of the couple’s children, creating a home environment, and other contributions.
The exact amount of each spouse’s portion of the marital estate (all property considered to be marital) depends on a number of factors, including:
- Each spouse’s contributions to the marriage;
- The length of the marriage;
- The standard of living established during the marriage;
- Each spouse’s ability to work for a living;
- Any prenuptial agreements involved; and
- The tax consequences of dividing marital property.
Splitting the Marital Home
Real estate, such as the marital home, can be divided like other property. Equitable distribution is not based on title. This means that property titled solely in one spouse’s name does not necessarily mean it is that spouse’s separate property.
Dividing the marital home is unlike splitting personal property such as furnishings, or purely financial assets due to the nature of real estate. You cannot physically “split up” the house itself or the property it sits on. Instead, you can divide the value of the home. In some cases, a divorcing spouse may buy out the other’s property interest in order to keep the house itself. Other times, the spouses may sell the home and split the revenue of the sale minus any debt. The parties can choose to settle this property division issue out of court, or may ultimately need the court to decide this issue.
Most spouses share both marital assets and marital debt. In Illinois, marital debt is treated like marital property as it is also divided under equitable distribution. Joint debt, like a mortgage or car loan, is considered marital debt as well since both spouses entered the debt together. Both spouses are liable for joint debt. Joint debt can also include debt held only in one spouse’s name, if the debt was used for joint purposes. For example, if one spouse took out a line of credit to make repairs on the marital home, that debt may be considered joint debt. Another common example of joint debt arises when spouses consolidate private student loans. No matter what, all joint debt should be addressed during the divorce.
Our Wheaton Divorce Firm Can Help
Facing the prospect of leaving or selling your marital home can be daunting. Every divorce issue, from property division to child custody, presents unique legal challenges. At Fay, Farrow & Associates, P.C., our experienced divorce lawyers understand these challenges. We will work closely with you to overcome complications in your case, while prioritizing your goals. Contact our Wheaton office today to schedule a free initial consultation.