Law Offices of Robert M. Kaplan, P.C.
Schaumburg Family Law Attorney

Dividing Property in a Divorce in Illinois

May 30, 2022
Posted By: Law Offices of Robert M. Kaplan, P.C.
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Divorce can be tricky, especially when determining how to divide your assets and debts. The Law Offices of Robert M. Kaplan, P.C. understand that the division of property can be challenging for many couples, and we are here to help you make the process go smoothly and fairly. This article provides information on property division in a divorce in Illinois that you may find helpful. 

The Basics of Property Division

In every divorce, the spouses must divide their marital property and debt before the judge grants their request for divorce. Couples can either work together to determine their property division or ask the court to choose for them. 

For couples who live in a community property state, the court presumes any debts or assets accrued during the marriage belong equally to the spouses. If a spouse has property that belongs to them, whether they brought it to the marriage or acquired it alone during the relationship, they will need to ask the court to award the separate property to them. 

Some states are equitable distribution states, meaning the court will divide the marital property fairly, though this doesn't always mean it'll be a 50/50 split. The court categorizes property as marital or separate before the judge awards spouses their portions. Those with separate property must prove ownership with a witness, receipts, or other evidence. 

Reach Property Agreement by Working Together 

A judge won't always understand your family's unique circumstances as well as you do. So, if you'd like to control how your assets and debts are divided during your divorce, you may want to consider working with your spouse instead of letting the court decide. Every couple is different, so what works best for you and your spouse may not work for someone else. 

Create a List of Assets 

One of the easiest ways to begin the property division process is for each spouse to list all of their assets and identify who should receive what in the divorce. When both of you complete your lists, sit down with each other and compare. We understand that many divorcing couples may have issues with this or may have a dispute, so you must work together to resolve the issue or seek counsel. 

You must be transparent throughout the property division process. Both spouses should identify all assets acquired during the marriage, including insurance policies, bank accounts, retirement accounts, real estate, pensions, vehicles, recreational vehicles and equipment, and anything else that has value. 

A judge can reopen your case to reevaluate the property division if one spouse doesn't disclose an asset, even after a property settlement. The guilty spouse may lose assets later and face fines or penalties if the judge believes the spouse intentionally failed to disclose information. Again, honesty is always the best policy! 

Value Your Property

Determining the value of your property is another essential step in the division of property. Generally, courts will accept each item's fair market value (FMV). You and your spouse can also agree on each asset's value worth more than a specific amount. Several helpful websites can help you figure out the value of a particular property. 

However, you may need to hire an appraiser to determine specific valuations, like for a business or antiques. If you and your spouse disagree on valuing particular items, you can both hire appraisers and ask the judge to choose from one of the two valuations presented. 

If you and your spouse can't agree on how to handle a specific asset, you can sell the asset and split the profits. However, if you can't decide what percentage of profits, you will have to ask the judge to make that decision. 

Determine If the Property Is Separate or Marital 

If you own separate property, it'll remain in your possession. First, you must categorize and agree that the assets are independent, and each spouse must identify each asset's owner. 

If there's a disagreement, the person claiming the item must prove their ownership to the judge. Examples of proof of ownership include: 

  • Date of purchase
  • How you purchased the item (with what funds)
  • How the item remained separate during the marriage

Don't Forget to Include Debt

Property division also includes debt. If you had joint debt during your marriage––tax debt, car payment, mortgage––you will have to split it during your divorce. However, if you had a credit card in your name only and never used it for marital reasons, you are solely responsible for that debt. 

Though the court can assign the debt to both spouses, it cannot change your contract with creditors. For example, if your ex-spouse fails to pay the creditor on your joint credit card, the credit card company will still require a payment from you. You can ask the court for your ex to reimburse for that amount later. 

Create a Property Settlement Agreement 

If you and your spouse agree on your property and debt division terms, it's time to draft a property settlement agreement that lists each asset and debt, the value, and the owner. You will present this agreement to the judge, who will make the final decision. To ensure you're making a good deal, we invite you to contact our law office and receive the guidance of a licensed attorney. An attorney can review the agreement before you sign it and ensure it's fair. 

The judge honors agreements in most cases. But if the judge notices anything awry––such as an unfair distribution of property––they may choose to investigate the settlement before approving it. 

Do You Need a Divorce Lawyer in Schaumburg?

Are you going through a divorce and have concerns about property division? Our Schaumburg law office is here to help by offering legal advice from an experienced family law attorney. 

The Law Offices of Robert M. Kaplan, P.C. provide full-service family law representation to individuals and families in Schaumburg, Rolling Meadows, and the surrounding communities.

Please call us today to speak with one of our team members and arrange a consultation. 

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