Property Division

A marriage is a partnership. Its assets are divided equitably. It is presumed all marital properties should be divided 50/50, but the presumption can be negated by certain factors, such as:
a. The present earning capabilities of each party;
b. The projected earning capabilities of each party; and
c. The contribution each party made to the marriage and acquisition of assets.
It is presumed that a stay at home parent’s contribution to the estate is equal to that of the spouse who is “the breadwinner”.  If one spouse makes substantially less money than the other, that spouse could get greater than 50% of the marital estate or maintenance. Part of the determination would be based on the length of marriage. Furthermore, a Court would prefer to order an unequal distribution of the marital estate giving one spouse a greater percentage if spousal maintenance can be avoided. The court would prefer not to have any obligations that could arise in the future.
It is presumed that any asset acquired during the marriage except by gift or inheritance is marital. It does not matter in whose name the assets is title. IRA’s, stock options, pension plans are all marital assets. Businesses acquired during the marriage would be deemed marital and is valued at fair market value. There are exceptions to the rule if the business is a personal service business. Under Illinois law personal service businesses are not valued except for the “hard assets” such as computers, furniture, and typewriters.

Special consideration may be given to the marital residence if children are involved. A court would prefer that the children lives not be disrupted. It is possible that a court will allow the residential parent to live at the house for a number of years after the dissolution before the home  is sold and the other spouse receives his/her share of the proceeds

 

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