When you and your spouse bought that gorgeous dining room set, you weren't thinking about which of you would get it if you ever got divorced. But if you live in one of the many states that don't have marital or community property laws on the books, you could end up arguing over it in front of a judge. So which states recognize community property and which don't? And absent a community property law, how do Illinois courts decide who gets the couch?
Marital Property Laws Generally
All property obtained by a married couple during the course of their marriage is considered "marital property" and subject to division upon divorce in some states. Ten states have community property laws that determine how debt and property are divided in a divorce: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Louisiana, Washington and Wisconsin. In states that recognize community property, even items obtained individually (but during the marriage) are subject to division along these lines. Illinois marital property laws do not recognize community property, which means property is not necessarily divided down the middle.
Illinois Marital Property Laws at a Glance
A significant part of legal comprehension is understanding every detail of any given statute. But you can't underestimate the use of a plain language explanation as a meaningful tool to understanding the law. The chart below contains a summary of the marital property laws in Illinois.
- Illinois Families Section 5/503 (distribution of property and debts)
Marital Property Presumption
For distribution purposes, all property acquired after the marriage and before a judgment of dissolution is presumed marital property.
Absent a statue requiring equal distribution of marital property, Illinois courts attempt to divide property in a divorce "equitably" (fairly, but not necessarily equally). Some factors the court may consider are:
- The contribution of you and your spouse to the purchase, preservation, or increase or decrease in value of the marital or property;
- The value of the property assigned to you and your spouse;
- The duration of your marriage;
- The relevant economic circumstances of you and your spouse when the division of property is to become effective;
- Any obligations and rights arising from a prior marriage of either you or your spouse;
- The age, health, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of you and your spouse;
- The custodial provisions for any children;
- Whether the apportionment is in lieu of or in addition to maintenance;
- The reasonable opportunity of you and your spouse for future acquisition of capital assets and income; and
- The tax consequences of the property division upon the respective economic circumstances of you and your spouse.
Note: State laws are always subject to change through the passage of new legislation, rulings in the higher courts (including federal decisions), ballot initiatives, and other means. While we strive to provide the most current information available, please consult an attorney or conduct your own legal research to verify the state law(s) you are researching.
Illinois Marital Property Laws: Related Resources
Get Professional Legal Help Understanding Illinois Marital Property Laws
Going through a divorce is tough enough, without the added stress of separating property. The assistance of an experienced lawyer can help make a difficult process much easier; and keep in mind that the other party likely will have legal representation as well. If you are going through a divorce or separation, it's typically in your best interests to work with an experienced, local family law attorney.