How is property divided?. In Illinois, property is classified into two main types: "marital" and "non-marital." Only marital property is divided by the court. Whatever is your non-marital property remains yours. The real question then is how do we tell if property is marital or non-marital.
All property acquired by either spouse after the wedding is marital property. There are. however, a number of exceptions to this general rule. Any property given to a party as a gift or property that a party inherits, even during the marriage, remains as that party's non-marital property. Any property that is acquired in exchange for a party's non-marital property will also be considered non-marital property. Generally, any property acquired before the marriage by a party remains that party's non-marital property even though it may increase in value during the marriage unless that increase is due to the investment of marital funds or labors.
There is one major exception to the exceptions. In certain cases, if you buy a house on your own, even in your own name, the house you buy might become marital property if you bought it while you were planning to get married. This will depend on the exact circumstances surrounding the purchase. Now by this point you may be thinking to yourself, about your lawyer,
"What? I'm paying this firm all this money so he can put me to sleep. Just shut up and tell me what I get to keep and what I have to give up!"
You're probably wondering what difference it makes whether the property is considered marital or non-marital. Well, basically, you keep your own non-marital property and the marital property is thrown into the pot.
Does all marital property get divided 50/50? Not necessarily. Remember when we said judges are given a lot of discretion in divorce cases. This is one of those areas that they get to use great discretion dividing up marital property but only if the property is determined by the court to be marital. Theoretically judges are not allowed to do whatever the heck they want. The law gives them guidelines they are supposed to follow, although the guidelines aren't perfectly clear. And, practically, divisions of property can be 50/50, 60/40, even 90/10.
The law sets out factors for judges to weigh when dividing marital property. The judges can look at what each person contributed to acquiring the property, even if your contribution was staying at home and taking care of the kids. The courts will take into consideration whether you went out and blew a lot of money on yourself after you had already made up your mind to get divorced. The judge will look at how long you've been married, each person's age, health, job prospects and opportunities and any special needs that one person or the other might have.
The reality of the situation is that in many cases, the facts do call for a fifty-fifty split. But how does a court determine what exactly is to be given to each person? First each piece of property has to be valued in dollars. A bank account is easy its in dollars already but a pension is a different matter. In some cases where the value of particular pieces of property isn't clear appraisers and other experts need to be brought in.
One other thing about property. It's important to remember just what we mean when we talk about property. Property is not only your house, your cars, your boat, and your jewelry and other things like that. It also includes your cash on hand, your bank accounts, your stocks and even things like a family business. Your smaller items like clothes, silverware, blankets and pillows are also property. Obviously some of these things cause bigger fights than others and some are more difficult to put a value on than others.
There are lots of fights about the family home. While a court can give the house or at least the use of the family home to the custodial parent there is no hard and fast rule that the wife gets the house. The court must consider the availability of other housing for the custodial parent as well as the children's relationship to the neighborhood. Although it is common for the custodial parent to be given the home either for a period of time or permanently it is not necessarily so.
Many needless fights are caused by people not really knowing what their home is worth. One of the reason we recommend using a state licensed and certified appraiser is that we think their estimates tend to be more accurate than say a real estate sales person who may have mixed motives in telling you what your house is worth.
Another big asset in many marriages is pension, profit sharing, 401 (k) or retirement plans of one or both of the parties. Potentially a lot of money is involved. What happens if the husband and wife are both relatively young, say in their thirties, and one or the other already has accumulated some benefits. No one can use them for years. One option is for one to buy the other out but, generally, neither party has that kind of money available. We use what's called a Qualified Domestic Relations Order, QDRO for short, to split up that type of property. A QDRO is essentially a separate order entered by the court which directs the administrator/trustee of the plan to pay out the benefits in a certain way at some point in the future. Often, this point in the future is twenty years or more. While it might be tempting to worry about the future later a QDRO is a way of protecting the future and is very common in divorce cases. In the past the only major drawback is that QDROs were not available in many state and local government pension situations but we now have Qualified Illinois Domestic Relations Orders (QILDRO) which can divide pensions with some few but significant drawbacks. First and foremost is that your spouse has to agree to the division via QILDRO and that surviving spouse benefits are not available. Both QDROs and QILDROs can take a very long time (six months or more) before it is approved and binding, since the pension fund has a very long time to approve the form of the order. But at least we now have QILDROs and there is some protection for the spouse of a civil servant. There can be direct pay of municipal pensions to the other spouse as there has been in privates pensions for years.
Remember, you're always entitled to do discovery to find out exactly what your husband or wife has. You also have the right to have an expert appraiser value real estate to get an idea as to exactly what a piece of property is worth and an actuary or accountant to evaluate pensions or businesses. Only an expert in finance can really tell you what things are worth today.
Alimony, now called maintenance, is also subject to many misconceptions and starts many disputes. If one person spouse makes substantially more money than the other it would be really unfair for one person to all of a sudden be left with a much lower standard of living once the other person leaves or if the marriage has become unbearable and the low income person can no longer bear to be married.
Therefore, courts can award maintenance to even things up a bit. Again, as you might have guessed, this is one of those areas where the courts have great discretion. There is no absolute formula or percentage for awarding maintenance. The court must look at the income and property of each person, the earning potential of each person, each person's needs, the standard of living established during the marriage, how long the marriage lasted, the age and health of each person and various contributions made by each person during the marriage. It's important to note that the court may award temporary maintenance during the time a case is pending in court.
Broadly speaking, unless the parties agree otherwise, in writing, maintenance is taxable to the person who gets it and deductible by the person who pays it. Also, unless the parties agree otherwise, maintenance will stop whenever either person dies or the person getting maintenance remarries or starts conjugally cohabiting on an ongoing basis living as man and wife but not being married.
Courts in Illinois have the power to award maintenance for either fixed or indefinite periods of time or on a permanent basis. Generally speaking, awards of maintenance on a permanent basis are relatively rare these days. Much more common are awards of what we call "rehabilitative maintenance." The basic idea behind that kind of maintenance is that the maintenance should be awarded for a period of time necessary to help the person getting the maintenance on his or her feet. In fact, for a number of years thee was a general trend toward getting people to work if they are capable of doing so, however, thre has been a recent resurgence in long term alimony.
In some cases, maintenance can be awarded for a set period of time. In other cases the maintenance award is made modifiable, or reviewable, to see if the person getting the maintenance continues to need it. You need to have an attorney look at your specific situation to let you know what kind of maintenance is best for you situation or what kind is likely to be awarded by a court.
Another important thing to keep in mind: the law says that maintenance can be awarded "without regard to marital misconduct" and it can be non-modifiable if the judge orders it or the parties agree. You can even agree to make it continue after the recipient remarries.