While some states are “equal distribution” or “community property” states, Illinois is an “equitable distribution” state. What does “equitable” mean exactly, and what does an equitable distribution of your marital estate look like in your divorce?
While an “equal” distribution necessarily implies that the marital estate will be divided 50/50, an “equitable” distribution requires the Court to consider a variety of factors to accomplish a fair and just distribution. Since every case presents a unique set of facts, what is considered equitable in one case might not be considered equitable in your case.
In determining what constitutes an equitable distribution, the Illinois Marriage and Dissolution of Marriage Act (“IMDMA”) directs the Court to “divide the marital property without regard to marital misconduct in just proportions” after considering all relevant factors, including but not limited to the 12 factors enumerated in the statute, which are as follows:
“(1) each party’s contribution to the acquisition, preservation, or increase or decrease in value of the marital or non-marital property;
(2) the dissipation by each party of the marital property;
(3) the value of the property assigned to each spouse;
(4) the duration of the marriage;
(5) the relevant economic circumstances of each spouse when the division of property is to become effective, including the desirability of awarding the family home, or the right to live therein for reasonable periods, to the spouse having the primary residence of the children;
(6) any obligations and rights arising from a prior marriage of either party;
(7) any prenuptial or postnuptial agreement of the parties;
(8) the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties;
(9) the custodial provisions for any children;
(10) whether the apportionment is in lieu of or in addition to maintenance;
(11) the reasonable opportunity of each spouse for future acquisition of capital assets and income;
(12) the tax consequences of the property division upon the respective economic circumstances of the parties.”
750 ILCS 5/503(d)(1)-(12).
It is important to note that “marital misconduct” is not considered in an equitable distribution of the marital estate. Illinois is a “no-fault” state, which means that if you are seeking to get divorced, you only need to allege that irreconcilable differences have caused an irretrievable breakdown of your marriage. This means that your past efforts at reconciling with your spouse have failed and that you believe future attempts at reconciliation would be impracticable and not in the best interests of your family.
In a no-fault state, marital misconduct such as abuse, neglect, abandonment, and adultery, except in cases where a spouse has “dissipated” marital assets i.e., has spent marital money for a non-marital purpose such as spending large sums of money on their paramour) are not considered by the Court when dividing the marital estate in just proportions.
Since each divorce case is different, it is important to educate yourself on how the facts of your case will be considered by the Court. If you are pursuing a divorce and have questions or concerns about how your marital estate could be divided between you and your spouse, do not hesitate to schedule a consultation and learn more about the divorce process.
Jessica E. Alvarez, Associate
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