Understanding Property Division In Divorce
Last updated on March 5, 2025
Going through a divorce can be extremely difficult. One aspect of divorce that can make the process even more difficult is property division. Divorcing couples must divide an entire marriage’s worth of assets and liabilities.
In many cases, one spouse has more control over the parties’ property and the other spouse may not know what is owned or the value of the property.
If you are going through a divorce, it is imperative that you know your rights to your property, that the values of all property are ascertained and that you be granted a fair share of the property.
At Taege Law Offices, our Chicago divorce attorneys are committed advocates for our clients. We understand how complicated it can be to divide assets and property during a divorce.
Talk to a lawyer today: We will work tirelessly to protect your rights and help you achieve your goals. To get immediate help with your case, please contact us online today or call 312-667-7706.
Property Division FAQs
- What is marital and non-marital property?
- Do I need an attorney?
- How are assets divided in a divorce?
- What happens to debts in a divorce?
- What happens to the marital home?
- What happens to a family-owned business in a divorce?
- How are retirement accounts divided?
- What happens if my spouse is hiding assets?
- What happens in cases where one spouse was the primary income earner?
- What outside experts do you work with in a complex property division case?
- How are professional practices divided in a divorce?
- What happens if one spouse refuses to comply with the court-ordered property division?
- What tax considerations should I make when negotiating a divorce settlement?
- How does the discovery of hidden assets affect a divorce case?
- How is deferred compensation split in a divorce case?
What Is Marital And Non-Marital Property?
Illinois is an equitable property jurisdiction which means that marital assets must be split up in a fair manner. In Illinois, fair does not always mean equal. When you are getting divorced, only marital property is subject to distribution. Nonmarital property will not be divided. Whether your assets are nonmarital property or marital property will depend on a number of different factors. Division of marital property is governed by Illinois Statute 750 ILCS 5/503. Some of the factors include:
- When the property was obtained (prior to the marriage or after the date the marriage began)
- Whether the property was given as an individual gift
- Whether the property was inherited
- Whether any prenuptial agreements apply
Do I Need An Attorney?
Yes! Many times people attempt to resolve their divorce by agreement without the assistance and guidance of attorneys. Oftentimes, we find that the language in the judgment is not exactly what a person believed he or she was agreeing to. It’s important to have an attorney review any final paperwork to ensure you are fully protected.
How Are Assets Divided In A Divorce?
Most of the property in a marriage is considered marital, or owned by both parties. There are exceptions to this, however. Whichever property was brought into the marriage and was understood to be individual (for example, a motorcycle, or a painting) is typically kept that way. Anything one spouse inherits, attains in an injury lawsuit or receives as a personal gift is not marital. A judge’s duty is to divide assets equitably. This does not mean equally. The way assets and property is divided depends on the length of the marriage, how and what each spouse contributed and the needs of each spouse, among other issues. We will assess your situation and tell you what can be reasonably expected and the steps to take to protect what is rightfully yours.
What Happens To Debts In A Divorce?
Typically, debts are shared. There are many things to consider when it comes to debt, however, especially how to prevent creditors from seeking one spouse to repay all debts should the other spouse declare bankruptcy, for example. We will assess your debt situation and advise you on the best way to protect yourself, your children and your financial future. If one party has debts and the marriage is annulled, then those debts typically belong only to the person who created them.
What Happens To The Marital Home?
Generally, a shared home is considered jointly owned, or “marital” property. However, if one spouse entered the marriage with their name only on the house and with the understanding that the house was their individual property, then the house will not likely be considered marital and the person will retain full ownership. If the house was purchased after the marriage, it will likely be perceived by the court as marital property. Paying a mortgage does not ensure that the house is marital. As every situation is slightly different, we can advise you on your particular asset division matter.
What Happens To A Family-Owned Business In A Divorce?
It all depends on the details of the business. In some cases, one spouse entered the marriage with a business and was the sole participant in the day-to-day operations, growth and success of that business. In other cases, a business was started after the marriage and both spouses contributed to the business’s success. In cases where it can be shown that both spouses had a role in the operation and success of the business, then it is likely that the business will be characterized as marital. In some cases, the best way to divide a business is for one spouse to “buy out” the other spouse. A buyout is typically not allowed in businesses that offer professional, licensed services and where only one spouse is licensed. We can do a detailed assessment and advise you as to the nature of the business in question. We can then offer strategies to protect your interests moving forward.
How Are Retirement Accounts Divided?
If the accounts were opened during the marriage, they are considered marital property. Likewise if contributions were made during the marriage. IRAs, 401(k)s and pensions typically require a qualified domestic relations order (QDRO) from the court to be divided after the divorce is final. How these assets are divided is dependent on a number of variables, the most impactful being the length of the marriage.
What Happens If My Spouse Is Hiding Assets?
It is illegal to hide assets during a divorce. There is always a paper trail, even with offshore accounts, straw men and shell corporations. Forensic accountants are specially trained to locate hidden funds. As experienced divorce attorneys, we will loop in these experts when warranted to ensure that all assets are accounted for.
What Happens In Cases Where One Spouse Was The Primary Income Earner?
Here again, it depends on many variables such as the length of the marriage, if there are children, and why one spouse worked and the other did not. Assets are to be divided equitably; this means that, for example, if one spouse worked for 20 years and the other stayed home to raise the children and take care of the home, then it’s likely that the court will award the stay-at-home spouse monetary monthly support as well as a portion of the retirement funds or pension. We will review the details of your marriage and counsel you as to your options and the best way to proceed.
What Outside Experts Do You Work With In A Complex Property Division Case?
We work tirelessly to provide thorough representation, even in the most complex cases. We frequently work with forensic accountants, private investigators, psychologists, mental health evaluators, economists, and other expert witnesses to provide a 360-degree perspective on your divorce, custody or other family law case.
How Are Professional Practices Divided In A Divorce?
Like every piece of marital property, professional practices are subject to division if one or both spouses established the practice during the marriage. However, if one spouse founded the practice before the marriage and the other made significant economic contributions, it is also marital property. We will work with experts, including forensic accountants, to determine the value of your practice and help you choose the best course of action. Typically, the spouse who contributed the most to the practice retains ownership.
What Happens If One Spouse Refuses To Comply With The Court-Ordered Property Division?
Refusing to follow a court ruling is a way of being in contempt of court, which can have serious consequences. If a spouse refuses to obey a property division order, the court can enforce it through fines and jail time.
What Tax Considerations Should I Make When Negotiating A Divorce Settlement?
When negotiating a divorce settlement, couples should always consider the tax implications. If you have children, you must consider taxes related to child support, dependents and child care tax credits. Cash and property received from the divorce are not taxable or deductible in a divorce. This means that there is no tax when transferring property between parties. However, assets transferred from a pension or retirement account will be taxed. Any property that either party sells after finalizing the divorce is eligible for tax gains.
How Does The Discovery Of Hidden Assets Affect A Divorce Case?
Hidden assets are a significant problem in high net worth divorce cases. During the divorce process, each party must disclose all of their assets. However, sometimes someone will not reveal everything by mistake or on purpose. At Taege Law Offices, we work with a forensic accountant to ensure that all assets are disclosed. If a spouse is hiding assets, they may be required to pay a share to the other party as a penalty.
How Is Deferred Compensation Split In A Divorce?
Deferred compensation accounts in Illinois are typically considered marital property that must face equitable division. However, withdrawing funds could result in penalties and taxes when splitting the account. Therefore, you may use a Qualified Domestic Relations Order to split the account to avoid penalties.
How Our Chicago Divorce Lawyers Can Help
When you work with the Chicago property division attorneys at Taege Law Offices, you can be sure that your rights will be fully protected. Our legal team will work diligently to make sure that we understand your situation, your goals, and your objectives. Among other things, we will:
- Review any prenuptial or postnuptial agreements and evaluate the enforceability of any agreement
- Determine all property/assets that need to be divided
- Prepare and review all relevant financial documents and records
- Take action to find any hidden assets
- Work to divide property including real estate, retirement accounts, family heirlooms and complex property division
- Negotiate toward a successful property division settlement, if possible
- Prepare for litigation should your former partner not cooperate, or if litigation is in your best interests
Contact Our Chicago Divorce And Family Law Attorneys Today
At Taege Law Offices, our Illinois family law attorneys have extensive experience handling property division and related issues. To find out more about what we can do for you, please do not hesitate to contact our law firm today at 312-667-7706. We represent clients throughout the greater Chicago area including in Cook, DuPage, Lake, Will and Kane counties.