One of the key tasks in dividing property during a divorce is distinguishing between marital property and non-marital property.

Marital Property

Marital property includes any assets and debts acquired by either spouse during the course of the marriage. This includes, but is not limited to:

• Income earned by either spouse during the marriage.

• Real estate purchased during the marriage.

• Pensions or retirement accounts accrued during the marriage.

• Vehicles, furniture, and other household items.

• Debts, such as credit card debts or loans incurred during the marriage.

It’s important to note that marital property is subject to equitable division, regardless of which spouse holds the title to the asset.

Non-Marital Property

Non-marital property consists of assets and debts that are not subject to division. It typically includes:

• Assets acquired before the marriage.

• Gifts or inheritances received by one spouse, unless they were commingled with marital assets (e.g., placed in a joint account).

• Property acquired after a judgment of legal separation.

• Assets specifically excluded by a valid prenuptial or postnuptial agreement.

• Certain judgments or awards for personal injury.

The key distinction here is that non-marital property remains the sole property of the spouse who owns it, while marital property is subject to division.

Illinois law follows an equitable distribution approach to dividing marital property. This does not mean an equal 50-50 split; rather, the court divides property based on what is deemed fair and just, given the circumstances. Under Section 503(d), the court considers a range of factors, including:

1. The Contribution of Each Spouse

• The court evaluates the contribution of each spouse toward acquiring, maintaining, and increasing the value of the marital property. Contributions are not limited to financial input; they also include non-financial contributions, such as homemaking and child-rearing.

2. Dissipation of Assets

• If one spouse is found to have used marital property for non-marital purposes (such as spending money on an affair or other unrelated purposes) during the breakdown of the marriage, this is considered dissipation of assets. The court may account for this and adjust the property division accordingly.

3. The Value of the Property Assigned to Each Spouse

• The court will consider what portion of the property is marital versus non-marital, and the value of the property that will remain with each spouse post-divorce.

4. Duration of the Marriage

• Longer marriages may result in a more even distribution of assets, as courts generally see the contributions of both parties (financial and otherwise) as more intertwined in long-term marriages.

5. Economic Circumstances of Each Spouse

• The court takes into account the present and future economic circumstances of each spouse, particularly considering the impact of one spouse having custody of minor children. A spouse with limited earning potential or in need of financial support may receive a larger share of the marital property.

6. Obligations from Prior Marriages

• Any financial responsibilities that either spouse may have from a previous marriage, such as child support or alimony, are factored into the decision.

7. Prenuptial or Postnuptial Agreements

• If the spouses have a valid prenuptial or postnuptial agreement that outlines property division, the court will typically uphold the terms of the agreement, provided it was entered into voluntarily and without fraud or coercion.

8. Custody of Children and Family Home

• The court considers whether one spouse should be allowed to continue living in the marital home, especially when the spouse has primary custody of the couple’s minor children.

9. Tax Consequences

• The court evaluates the potential tax consequences of the property division for each spouse. For instance, selling or transferring certain assets may incur tax liabilities that must be accounted for when dividing property.

10. Spousal Health, Age, and Future Income

• The court looks at factors such as the age and health of each spouse, along with their future earning potential, to ensure the division is equitable and that both parties will be financially secure post-divorce.

11. The Opportunity for Future Acquisition of Assets

• The court will assess the likelihood of each spouse to accumulate property or income in the future. If one spouse has greater earning potential or more career opportunities, this could impact how the property is divided.

12. Any Other Relevant Factors

• The court has the discretion to consider any other factors it finds relevant in ensuring that the division of property is fair and just.

A key issue that may arise during property division is dissipation. Dissipation occurs when one spouse uses marital property for purposes unrelated to the marriage at a time when the marriage is undergoing an irretrievable breakdown. Common examples include:

• Spending money on extramarital affairs.

• Excessive gambling.

• Financial gifts to third parties without the other spouse's consent.

• Lavish spending on vacations or luxury items while the marriage is failing.

Illinois courts require that claims of dissipation be raised in a timely manner. The burden of proving dissipation lies with the accusing spouse, and the court will adjust the property division to account for the misused assets.

In some cases, the division of marital property may involve more complex assets such as:

• Business interests: If one or both spouses own a business, it may be subject to valuation and division.

• Retirement accounts: Pensions, 401(k) plans, and IRAs accumulated during the marriage are considered marital property and may be divided through a Qualified Domestic Relations Order (QDRO).

• Stock options: If one spouse has stock options acquired during the marriage, the court will determine how these should be divided.

The division of such assets requires careful consideration of tax implications, present and future values, and other financial complexities.