One of the biggest misconceptions people have when it comes to dividing assets in a divorce is that everything will be split equally or 50/50. Yet, that’s not always the case. Depending on where you live and your particular situation, equitable may not necessarily mean equal.
Most states, including Illinois, divide assets by equitable distribution or what’s considered “fair” based on statutory and case law factors. If you and your soon-to-be ex-spouse are unable to settle outside of court, a judge will divide assets based on these factors and the actual facts of your case. Since your future and the future of your family will likely be significantly impacted by what you receive when your case is finalized, it’s important to understand how the process works and how your attorney can help you navigate it.
What do courts consider when dividing assets equitably?
Courts look at several things when figuring out what’s equitable: the length of your marriage, your marital and non-marital assets, any disparity in present and future earnings and the standard of living you and your spouse maintained during the marriage. Judges also take into account your skills, employability, age, health and current custody arrangements. Plus, the court will consider contributions each of you made to the property, income and home life as a whole. That means if you’re a non-working spouse, you are not penalized because you don’t earn an income.
Because every situation is different, judges will look at a wide range of factors and fashion an equitable division of assets that is appropriate to each case. It’s imperative to note that the law is subjective and there are few absolutes, which means the courts often interpret them to achieve “equity.”
What is a martial vs. non-marital property?
The general rule in Illinois statute is that non-marital property is anything that was owned before the marriage or anything that was gifted or inherited. However, non-marital property can become marital property through transactions during the course of a marriage. Non-marital property can also be a factor when dividing marital assets depending on the value of the non-marital property. If the value is modest, it may not be considered. If it is sizable, a judge may and usually does take that into account.
How do courts consider maintenance?
Maintenance is the term used for how much one spouse must pay the other in support. Each person brings something different into a marriage, and the disparity of income between the two parties will be taken into account. If you are not the primary breadwinner and a sufficient disparity in income exists justifying support, the court will set support using statutory guidelines if applicable. Otherwise, and when income is in excess of the guidelines, the court will set support based on additional factors including lifestyle.
Child support is also a factor and impacts maintenance. If the parties’ income falls within statutory guidelines, the court typically applies the guidelines formula to set support. However, for high-income families, the guidelines do not apply. In those situations, the court will look at the children’s lifestyle and expenses in determining what amount of support is needed and appropriate. Child support can also be impacted by the extent of each party’s parenting time including the number of overnights each parent receives.
How can my attorney help me get the best outcome?
Because divorce is a family matter, care and privacy are essential. Your attorney should help you navigate the process, transition you into the next phase of your life and look to resolve matters efficiently and equitably to avoid unnecessary litigation and the accompanying fees and stress. Your attorney should guide you through whatever process best fits your situation with creative approaches and assemble a team to assist you with the next phase of your life. An experienced lawyer can recommend an accountant, an estate attorney or a financial planner to help in planning for your future.
As a skilled negotiator, I assist clients in reaching favorable settlements without the necessity of trial whenever possible. However, if court litigation is necessary, my clients have the trust and confidence that I will successfully present their issues to the court and achieve their goals. My clients also understand and appreciate that their attorney is usually their only voice in court, thus it is vital to choose a lawyer you trust and who is able to properly advocate on your behalf.
At the end of the day, your attorney should empower you with the necessary information and resources in order to make an informed decision. While equitable may not always mean a 50/50 split, understanding the process and working with a skilled attorney is essential when it comes to protecting and dividing your assets.