When it comes to dividing up property during divorce proceedings, Illinois is an equitable distribution state, meaning that marital assets are split as equitably (fairly) as possible. Thus, when large or expensive assets need to be divided, it can require a bit of maneuvering to ensure that both spouses receive the most equitable share of the estate. The marital home is one of the assets most commonly debated and argued about during proceedings, but it is possible to work out who should be awarded the home without leaving them otherwise penniless.

Is the House Marital Property?

The first question that must be asked is whether the home is even considered marital property or not. In most situations, the answer will be yes, but it cannot simply be assumed. Under Illinois law, any asset acquired by either spouse after the marriage is considered marital property, which usually includes the marital home - most couples will make that purchase together after they are married, sharing the title between them as joint tenants or tenants in common. (A joint tenancy occurs when two people own property together as a unit, meaning that if one person dies or wishes to give up their interest, it will be taken up by the other owner; on the other hand, tenants in common are free to sell or transfer their interest.)

Asset distribution in divorce is almost never easy. However, in some cases, it can be made more complex if there is suspicion that your spouse is hiding something. Whether information or assets, if your spouse is not being honest, it is a problem. Fortunately, there are remedies available under Illinois law.

How to Spot Irregularities

As a general rule, couples in the U.S. can be less than honest with each other regarding financial affairs. A 2016 poll from the National Endowment for Financial Education (NEFE) showed that as many as 40 percent of married people hid a major purchase from their spouse or took money out of joint accounts without discussion. During a marriage, this may be able to be solved with discussion or counseling - but during a divorce, or if the purchase is not disclosed during the divorce, it can be a significant issue.

When two people with significant assets decide to divorce, they may encounter issues that do not appear in a divorce involving very little marital property, not least of all with asset division. People who marry with high-value assets in their possession will understandably want to take steps to ensure that they retain them, rather than having them be part of the equal distribution that makes up a marriage. There are multiple ways to do this under Illinois law.

Prenups in Illinois

Prenuptial agreements are the most common way to protect assets for most couples. Illinois law is fairly straightforward regarding them, holding that they are enforceable unless made under duress, or if one party’s signature was obtained through fraudulent means. There must be a full accounting of each party’s financial information before it can be deemed that both spouses have enough information to properly execute the agreement. Coercion is also sometimes an issue, and a court will look at the timing of the agreement and of both signatures - for example, if a wife is only given one week before the wedding to examine and sign a prenup despite having extensive assets, coercion on the part of the husband may be indicated.

It is permissible to contract under these agreements regarding almost anything that is not against the law, or against the public policy of the state of Illinois. However, there are issues that spouses will try to contract for that the court will not allow. For example, child support may not be contracted for, because it is a right that belongs to the child, not the parent - thus, any child of the marriage is not technically born at the time of the agreement’s creation, so their rights cannot vest.

During an Illinois divorce, the division of marital property is very often complex and divisive. One asset that can spark significant debate is each spouse’s retirement account or accounts, simply because the process to divide such an account can be laborious, and each spouse wants to ensure that division is fair and above board. Having an understanding of how a retirement account is divided can go a long way toward quelling arguments before they start.

QDROs

With most private retirement accounts, the proceeds are normally only payable to the listed beneficiary - at times, the employee who earned it; at times, the spouse, at times, someone else. The Employee Retirement Income Security Act (ERISA) covers 401(k)s and mandates that only one’s spouse may be the beneficiary, although Individual Retirement Accounts (IRAs) are not covered by ERISA.

Every marriage accumulates assets, classified as marital property, that must be divided upon divorce. However, the division process for assets that have significant value can get much more complex, simply because there must be a more thorough balancing of assets and debts in order to make sure that both spouses get a fair share, rather than leaving one spouse with the lion’s share of the property and one with the debts. It is important to have a good grasp of the process, so you can be doubly sure that you are not being given the proverbial short end of the stick.

Each Asset Is Different

Perhaps the most important thing to understand about this process of asset division is that each situation is different, as well as each couple. Some of the most common high-value assets include family businesses, retirement accounts, real property, and stakes in corporations, and all of these must be handled differently. Even more factors enter into the equation when one assesses each spouse’s role in acquiring or maintaining the asset, as well as numerous other factors generally considered by the court in every asset division.