Community Property in an Illinois divorce

Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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  1. […] is considered marital, an Illinois divorce court may divide the responsibility for that debt “equitably.”  This means the debt will not be divided 50/50 but, rather, will be divided any way the court […]

  2. […] Marital property is divisible by Illinois divorce courts.  But, how do you divide a car, truck or motorcycle in an Illinois divorce? […]

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Is Illinois A Community Property State For Divorce?

Community Property in an Illinois divorce

Community property is a phrase that is often heard on television or the movies when they discuss a divorce.  The reason “community property” is so often mentioned in media is that “community property” is legal term under the California statutes.  All of these television shows and movies that mention “community property” are filmed in California.  But what about Illinois? Is Illinois a community property state for divorce?

Illinois doesn’t even use the term community property.  Essentially, in lieu of the term “community” Illinois uses the word “Marital.” Illinois divorce law divides property into “marital” and “non-marital” portions for the purposes of dividing assets in a divorce. 

Marital Property in Illinois

“‘[M]arital property’ means all property, including debts and other obligations, acquired by either spouse subsequent to the marriage” 750 ILCS 5/503(a)

“For purposes of distribution of property, all property acquired by either spouse after the marriage and before a judgment of dissolution of marriage or declaration of invalidity of marriage is presumed marital property.” 750 ILCS 5/503(b)

So, marital property is any property acquired by either party during the marriage.  This includes property acquired after the parties have separated or filed their Petition for Dissolution of Marriage. 

There are exceptions to what can be considered marital property even if that property was acquired during the marriage.

The exceptions shall be “known as “non-marital property”:

(1) property acquired by gift, legacy or descent or property acquired in exchange for such property;

(2) property acquired in exchange for property acquired before the marriage;

(3) property acquired by a spouse after a judgment of legal separation;

(4) property excluded by valid agreement of the parties, including a premarital agreement or a postnuptial agreement;

(5) any judgment or property obtained by judgment awarded to a spouse from the other spouse except, however, when a spouse is required to sue the other spouse in order to obtain insurance coverage or otherwise recover from a third party and the recovery is directly related to amounts advanced by the marital estate, the judgment shall be considered marital property;

(6) property acquired before the marriage, except as it relates to retirement plans that may have both marital and non-marital characteristics;

(6.5) all property acquired by a spouse by the sole use of non-marital property as collateral for a loan that then is used to acquire property during the marriage; to the extent that the marital estate repays any portion of the loan, it shall be considered a contribution from the marital estate to the non-marital estate subject to reimbursement;

(7) the increase in value of non-marital property, irrespective of whether the increase results from a contribution of marital property, non-marital property, the personal effort of a spouse, or otherwise, subject to the right of reimbursement provided in subsection (c) of this Section; and

(8) income from property acquired by a method listed” 750 ILCS 5/503

So, all property earned during the marriage becomes classified as either marital or non-marital property. 

An Illinois divorce court MUST qualify each property as marital or non-marital before any division of assets is allowed.

“The court shall make specific factual findings as to its classification of assets as marital or non-marital property, values, and other factual findings supporting its property award.” 750 ILCS 5/503(a)

Marital property may be divided by an Illinois divorce court whereas non-marital property is non-divisible.

“[T]he court shall assign each spouse’s non-marital property to that spouse.” 750 ILCS 5/503(d)

How is Marital Property Divided In An Illinois Divorce

Marital property in Illinois is subject to an “equitable distribution” meaning that the courts can distribute the property in any way they see as being fair to the parties. 

When the courts make this equitable distribution, they must consider a series of factors as listed in the statute. 

The courts “shall divide the marital property without regard to marital misconduct in just proportions considering all relevant factors, including:

(1) each party’s contribution to the acquisition, preservation, or increase or decrease in value of the marital or non-marital property, including (i) any decrease attributable to an advance from the parties’ marital estate under subsection (c-1)(2) of Section 501;  (ii) the contribution of a spouse as a homemaker or to the family unit;  and (iii) whether the contribution is after the commencement of a proceeding for dissolution of marriage or declaration of invalidity of marriage;

(2) the dissipation by each party of the marital property, provided that a party’s claim of dissipation is subject to the following conditions:

(i) a notice of intent to claim dissipation shall be given no later than 60 days before trial or 30 days after discovery closes, whichever is later;

(ii) the notice of intent to claim dissipation shall contain, at a minimum, a date or period of time during which the marriage began undergoing an irretrievable breakdown, an identification of the property dissipated, and a date or period of time during which the dissipation occurred;

(iii) a certificate or service of the notice of intent to claim dissipation shall be filed with the clerk of the court and be served pursuant to applicable rules;

(iv) no dissipation shall be deemed to have occurred prior to 3 years after the party claiming dissipation knew or should have known of the dissipation, but in no event prior to 5 years before the filing of the petition for dissolution of marriage;

(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;  and

(12) the tax consequences of the property division upon the respective economic circumstances of the parties.” 750 ILCS 5/503(d)

Do judges really work through each of these 12 factors in order to arrive at the most equitable division possible?  In my experience, they do not.  More typically, the judge will say something like “Mom never worked so I’m giving her 70% of the estate.”  Or, “Dad put mom through med school so I’m giving splitting the estate 60/40.”

If there are not some extreme inequities between the two spouses, a divorcing couple in Illinois should expect to divide their marital property 50/50 based on the properties total value

So, in California all community property is divided equally (50/50), while Illinois’ community property equivalent, marital property, can be divided any way the judge thinks is fair.

Other California Divorce Law Terms That Don’t Exist in Illinois.

If you’ll recall from the beginning of this article, community property is a Californian legal term and therefor causes some confusion for Illinois residents.  There are a bunch of other terms they use in California which we do not use in Illinois such as:

Alimony.  In Illinois we call alimony maintenance.  This better reflects support for an ex-spouse’s true purpose, to maintain them.

Palimony.  In California, you can collect alimony from someone you’ve never even married so long as you lived with them long enough.  This isn’t common law marriage, it’s just an additional Californian concept. In Illinois, if you weren’t married to a person, you won’t get support from that person.

No-Fault Divorce.  In California, they explicitly say that no one can be at fault in a divorce. This means you don’t have to prove anything like adultery or abandonment in order to get a divorce in California.  In Illinois, we do have to find a fault in order to finalize a divorce.  But there’s only just one available fault (we call it “grounds”) that grounds is “irreconcilable differences.”  You have to prove that you have irreconcilable differences between you and your spouse in order to get a divorce in Illinois.  It is very easy to prove irreconcilable differences in Illinois, you merely need to tell the divorce judge in your final hearing that you have irreconcilable differences.

If you’d like to learn more about your marital property in Illinois and what will happen to that property in a divorce.  Please contact our Chicago family law firm for a free consultation.