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Property division basics

Photo of Karen Lavin

For many Illinois residents, property division is one of the hardest aspects of getting a divorce. That is especially true for residents with significant assets, including property, retirement accounts, financial investments and closely held businesses.

To simplify that process, couples seeking to dissolve their marriage should take some time to learn about the process. The first step in doing that is to understand which property belongs to the couple such as marital property. Moreover, they should understand what property belongs to each spouse individually, which is often called separate property.

Separate property typically is all property a spouse owned before the marriage, but it can also include gifts or inheritance one spouse received either before or during the marriage as well as certain parts of personal injury judgment.

Beware, however. Separate property can become marital property if commingled with marital property. For instance, if one spouse owned a rental property before the marriage and then re-titled it in the couple's name, the rental property now becomes marital property.

As for marital property, all other property the couple acquires during the marriage is typically marital property. That is true no matter which spouse owns the property or how it is titled. For example, if the couple bought a car during their marriage, but only put one spouse's name on it, the car usually still belongs to both.

Once you know what property is separate and what is marital, you need to know that Illinois is an equitable distribution state. That means the property settlement is not necessarily split down the middle. Instead, it will be split fairly and equitably.

When it comes to property division, many factors play into what constitutes fair. The length of the marriage, the income and property each spouse had prior to the marriage, the income and earning potential of each spouse going forward will likely affect the process. Understanding who has ownership and how property will be distributed once a marriage is dissolved can be complicated. It is best to take the time to understand the steps and seek out any assistance needed in the process.

Source: Huffington Post, "Understanding How Assets Get Divided in Divorce," Jeff Landers, June 14, 2013

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