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Illinois Division of Property: How is property divided in a divorce?

Understanding Illinois Division of Property in Divorce

Going through a divorce can be an emotionally taxing experience, and the division of property often adds a layer of complexity to the process. In Illinois, the distribution of assets and debts during divorce follows the principles of equitable distribution. Unlike community property states where marital property is divided 50/50, Illinois courts strive to reach a fair and just allocation, which does not necessarily mean equal.

The Equitable Distribution Principle

In accordance with 750 ILCS 5/503, Illinois law dictates that marital property should be divided equitably. Equitable distribution takes into account numerous factors, such as each spouse's contribution to the acquisition of property, the duration of the marriage, relevant economic circumstances at the time of division, obligations from previous marriages, and each party's age, health, and employability.

Marital vs. Non-Marital Property

A crucial step in dividing property is distinguishing between marital and non-marital assets. Marital property includes almost all assets and debts acquired during the marriage, while non-marital property refers to items owned before the marriage or received individually as gifts or inheritance. It's important to note that commingling or transmuting assets can alter their classification.

Case Examples in Illinois Divorce Law

Historical cases in Illinois shed light on how courts handle complex property division. For instance, In re Marriage of Smith highlighted that even when one spouse's financial contribution is significantly greater than the other's, non-financial contributions such as homemaking or raising children are also highly valued in equitable distribution.

Negotiating Property Division

Spouses have the opportunity to negotiate property division through a marital settlement agreement. If they can't agree, the court will intervene. The negotiation process often involves attorneys representing each party's interests. For example, a spouse might retain ownership of the family home in exchange for a larger share of retirement accounts.

Impact on Business Owners

Business owners face unique challenges during divorce. The business must be evaluated to determine if it's marital property and its value for equitable distribution. Case law demonstrates that not only tangible assets but also intangible factors like goodwill are considered in these valuations.


The division of property in an Illinois divorce can be intricate and case-specific. It is advisable for individuals going through this process to seek legal guidance to navigate these waters effectively and protect their interests.