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Illinois Property Division Laws

In an Illinois divorce, marital property is divided equitably between spouses. Illinois uses equitable distribution, meaning assets are split fairly based on factors like each spouse's income, needs, and contributions – but not necessarily equally. The court encourages settlement first. If the parties fail to come to an agreement, the court decides property division.

Equal Distribution

Dividing Property in Divorce in Illinois

In Illinois, marital property is divided equitably between spouses in a divorce. This means the distribution is fair but not necessarily equal. Courts consider various factors like each spouse's income, needs, and contributions when dividing assets.

Marital vs. Non-Marital Assets

Marital property includes assets acquired during the marriage. Non-marital property is not subject to division and includes:

  • Inheritances, gifts, and assets owned before marriage
  • Compensation for personal injuries
  • Property excluded by a prenup or postnup agreement

Equitable Distribution Factors

Illinois courts consider the following when dividing marital property:

  • Each spouse's contribution to acquiring marital property
  • Value of each spouse's non-marital property
  • Income, vocational skills, employability, and needs of each spouse
  • Custodial provisions for children
  • Whether maintenance is awarded

The Process of Property Division in Divorce in Illinois

File the Petition

Dividing marital assets in an Illinois divorce follows a legal process with court oversight to ensure an equitable distribution.

The process of property division can be complex and time-consuming. It is important to have an experienced divorce attorney to help you navigate the process and protect your rights.

The court encourages compromise to avoid costly litigation. However, trials provide fair rulings when spouses cannot agree. At every stage, the goal is a property split and divorce settlement that is legal, just, and tailored to each spouse's circumstances. Our experienced attorneys guide you through property division.

Step 1

Discovery and Asset Disclosure

Parties exchange financial documents like tax returns and bank statements. Full disclosure of assets and debts is required.
The value of assets can be difficult to determine, especially if they are unique or illiquid. It is important to get professional appraisals for any assets that are being divided.

Step 2

Attempt Settlement

Parties try to negotiate a marital settlement agreement on property division and other issues. Mediation can assist with compromise.

Step 3

File Proposed Settlement

If settlement is reached, the proposed agreement is filed. If not, each party files their proposal for property division.

Step 4

Pre-Trial Conference

Outstanding issues are identified. The judge may push settlement if parties are close.

Step 5


If no agreement, the judge hears arguments and decides on disputed assets.

Step 6

Final Judgment

The judge issues a final judgment detailing the binding property division and resolution of other divorce issues.
The tax implications of property division can be significant. It is important to consult with a tax advisor to understand the tax consequences of any proposed property division agreement.
Property division orders can be modified under certain circumstances. It is important to speak with your attorney if you believe that a property division order needs to be modified.

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Key Components of Property Division in Illinois


Dividing assets during an Illinois divorce involves examining multiple financial factors alongside child-related matters. Under the state's equitable distribution laws, marital property is divided fairly based on criteria like each spouse's income, needs, and contributions to acquiring the assets.

The court strongly encourages compromise between spouses to avoid litigation. If no agreement can be reached, the judge steps in after reviewing settlement proposals from both parties.

Common disputed assets include the marital home, retirement accounts, debts, businesses, vehicles, bank accounts, and investments. Inheritances and other separate, non-marital property are typically exempt from division.

Marital vs. Non-Marital Property

In Illinois, only marital property acquired during marriage is divided. Non-marital property like gifts, inheritances, and pre-marital assets are exempt.

Equitable Distribution

Illinois equitably divides marital property based on factors like income, needs, and contributions – not necessarily equally. The court encourages compromise.

Valuing Assets

Processes may include professional appraisals for real estate, business valuations, determining market value for vehicles, collectibles, etc. Accurate asset values are essential for equitable division.

Tax Implications

Dividing some assets like retirement accounts can have tax consequences. Selling the marital home may generate capital gains taxes. Dividing retirement balances may trigger early withdrawal penalties and taxes, as well. Consulting a tax professional is recommended.

Dissipation of Assets

If one spouse improperly spends or transfers marital property before division, the court can compensate the other spouse.

Pre-nuptial Agreements

Prenups and postnups dictate property division in case of divorce. Terms regarding child custody, visitation, and support cannot be included. Both parties must fully disclose assets and sign voluntarily without duress.

Settlement Agreements

Spouses can create marital settlement agreements outlining property division. If no agreement, the court decides after reviewing proposals from both parties.

Enforcing Court Orders

Court orders regarding property division are legally binding. The court can impose sanctions for noncompliance.

Modifying Property Division Orders

Illinois law allows courts to modify existing property division orders under certain circumstances like fraud, non-disclosure of assets, or clerical errors. Changes may also be allowed based on substantial change in circumstances.

Additional Components in Property Division

Property division is complex because there are many aspects to it, and it happens alongside the other divorce issues such as child custody, child support, and alimony.
Below are links to more information on those aspects and issues that impact property division. For case specific advice, schedule a consultation with Sterling Lawyers .

Frequently Asked Questions

How is property divided in Illinois?

The court will divide the marital property fairly between the spouses. This does not mean that the court has to divide the property in a 50/50 split.

How long do you have to be married to get half of everything in Illinois?

Individuals are not awarded a specific percentage or portion of the marital property based on the length of the marriage. However, the length of the marriage is likely most important in determining what is marital property versus non-marital property and looking at each parties' contributions to that property.

What is considered non-marital property in Illinois?

Non-marital property (or separate property) is property owned by only one party, not both. This means it is not divided in the property division process and not considered under equitable division. This includes assets gained before the marriage, as a gift, or from an inheritance.

Are separate bank accounts considered marital property in Illinois?

Importantly, an account does not have to be jointly held in both spouses' names in order to be a marital asset. However, if you have an account that was funded entirely before your marriage, or funded entirely with non-marital assets like an inheritance, the account may belong entirely to you.

How do you split your marital property?

Because Illinois is a community property state, marital property is split evenly between parties. Evenly means what one party is taking should be roughly equivalent in value to what the other party gets. Do this methodically using a property division worksheet.

What assets cannot be split in a divorce?

Inheritances, premarital assets, and post-separation assets are not marital property. This means that they are not split in the property division process because they are owned only by one party. However, non-marital property can become commingled, making an asset marital property.
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