If the marriage lasted longer than a few years, most couples have significant property and debt to divide during a divorce. In Illinois, the distribution must not constitute an unfair financial burden for either party. Note that marriage dissolution is almost always a financial burden, but neither the husband nor the wife should shoulder more than half of it, in most cases. To bring about an equitable distribution, a Chicago judge looks to a number of different factors. None is weighted more heavily than another one. Some of the more common ones include:
Agreements Between the Spouses
Illinois judges almost always uphold pre- and post-nuptial agreements that are not entirely one-sided and were signed voluntarily. In this context, an agreement is voluntary if there was no duress greater than a sign-or-else ultimatum and both parties had full access to all important financial data. As a rule of thumb, if each party had an attorney, the agreement is almost always voluntary.
For the rest of 2018, this factor will remain as of the most significant considerations in property division matters. On January 1, 2019, it may become largely irrelevant. The tax code rewrite eliminates the tax deduction for alimony payments and ends the requirement that they be reported as income. After the changes go into effect, judges still need to first decide whether an award of maintenance is even appropriate for divorcing spouses. There may still be some tax considerations, such as property taxes on a house, but these issues are normally not nearly as important.
Noneconomic Contributions to the Marriage
Some spouses give up chances to pursue income and property to assume caregiver responsibilities at home. Some go a step further. They give up some of their nonmarital property to support the other spouse through school, in starting a business, or in some other endeavor. So, in some cases, these contributions are huge. In other cases, however, this factor is largely irrelevant.
Dissipation (Waste or Concealment) of Assets
Sometimes, dissipation is a back door to bring martial fault into the property division discussion. If Husband spent thousands of dollars on gifts for a girlfriend, Wife is entitled to a fair proportion of that lost property. Or, if Husband’s lawyer had to hunt down property that Wife tried to conceal, Husband may be entitled to a disproportionate share to compensate for the additional attorneys’ fees. Dissipation claims have a five-year limitations period, and the party filing a claim must serve advance written notice on the other party.
Future Income Potential
This factor often weighs in favor of women. Statistically, divorced women have a much harder time rebuilding wealth than divorced men. If Wife has custody of a minor or disabled child, it is even harder to rebuild wealth. However, Wife usually only receives a disproportionate share based on future income potential in extreme cases.
Child Custody Provisions
If the custodial parent must place the children in daycare for an extended period of time, s/he may need additional financial resources. Those resources could come from the noncustodial parent in the form of higher alimony payments or a disproportionate share of marital property. Similar issues may arise if the custodial parent keeps the house and can only marginally afford it.
Some other factors include the length of the marriage, number of prior marriages (if any), and spousal support provisions.
Connect With Experienced Lawyers
Property division is a very subjective exercise in Illinois. For a confidential consultation with an experienced criminal defense attorney in Schaumburg, contact Glasgow & Olsson.
(image courtesy of Jessica Furtney)