Property discovery, valuation and distribution
Next to child custody and support, the topic of the division of property within the context of a divorce can be very stressful. It is hard to agree on who will take which asset when it is something such as a piece of real estate that is desired by both parties. If both parties can come to an agreement, a marital settlement agreement can be submitted to the Court. If there is a disagreement, assets will be separated into marital assets and non-marital assets in a court setting.
Illinois is an equitable distribution state, which means that all marital property should be equitably distributed among both parties of the divorce. This does not necessarily mean that the property will be distributed equally. Instead, a variety of financial and personal factors are put into consideration and marital property is distributed accordingly. “Marital property” includes all property obtained by either party after the date of the marriage.
Equitable distribution is the division of marital property at the time of a divorce or legal separation. If the spouses cannot divide the property on their own, the court will step in and divide it up for them. Illinois courts consider the following factors when dividing property during a divorce:
- the contribution of each party to the acquisition of the property
- the duration of the marriage
- the opportunity for future acquisition of assets
- the direct and indirect contributions of each spouse
- the overindulging tendencies of either party
- the awarding of spousal support
- the need of the custodial party to own the residence
The above considerations are set in place to allow for a fair and just system of property division. It is preferred that decisions on the division of property are made solely between the two parties, but when this is not the case, there is legal authority to guide decisions around property division. In these situations, dissipation of assets and asset tracing are also considerations. Dissipation is the intentional act of one spouse to reduce the value of assets, for the purpose of reducing the property available to the other spouse. Asset tracing can be used to determine the existence and value of an asset which has been converted into another form by one spouse in order to prevent discovery by the other during the divorce process.