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Dividing property in divorce: Overview

As a Chicago divorce lawyer who deals with division of property and high net worth divorces, I know that people have many questions about  – to put it bluntly – keeping their stuff. You don’t have to be in a high-net worth divorce in Illinois  to be concerned that you keep as much of your property as possible. 

What can be divided? Marital property

Courts don’t divide all property own by the parties. It only has authority to divide marital property; if property is not marital, then the court has no authority to divide it upon divorce.

As a general rule, pursuant to Section 503 of the Illinois Marriage and Dissolution of Marriage Act (the “IMDMA”), all property acquired by either spouse after the marriage is presumed to be marital property with the following exceptions:

  • 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.
  • Increases in value acquired by any method listed above.
  • Income from property acquired by any method listed above.

Please note: An asset can be marital property even though it is only titled to one of the parties. For example, if a bank account is opened during a marriage by the Wife, and contains funds earned only by the Wife during the marriage, that bank account is marital property  – even if it is only in the Wife’s name.

How is marital property divided?

Marital property is divided equitably. What does that mean? There are cases that give some guidance to judges, but for the most part, an equitable division is what the particular judge thinks is fair. Different judges have different views about what is an equitable division of property in an Illinois divorce. This means that if the same case was before two different judges, one judge might award the Husband 50% of the marital property, and another judge might award the Husband 40% of the marital property.

About the author: Contact Illinois family law attorney David Wolkowitz at 312-554-5433 or online. He is a family law and divorce attorney serving Chicago and the Counties of Cook, Champaign, DuPage, Kane, Kendall, Lake, McHenry, and Will. Areas of practice include divorce, uncontested divorce, child custody, visitation, spousal maintenance, child support, and the Uniform Child Custody Jurisdiction & Enforcement Act (the “UCCJEA”).