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Equitable does not mean equal in property division

How marital property and assets are divided in a divorce is understandably one of the first things that people facing divorce in Illinois are concerned about. This is due in large part to the confusion that exists surrounding the legal term, equitable division. Many people automatically yet incorrectly equate equitable with equal. In fact, equitable refers to fair, not equal. This is a very important point that must be understood.

According to the American Academy of Matrimonial Lawyers, the first step in any determination of equitable division is to identify non-marital property. These assets are largely left out of any further property division decisions. The only exception to this is that the overall asset profile of each spouse, which can include separate property, is a consideration in a final property division settlement. Other factors that a judge can use in these situations include any non-marital use of marital funds or assets and the amount that each spouse contributed to the growth or decline of any marital asset over the course of the marriage.

The Illinois General Assembly points out also that spousal support and child support awards can be impacted by both non-marital and marital property. Child custody arrangements and any reasonable request or need for children to stay living in the family home are also considered in a final equitable division order. The tax implications associated with different assets like retirement accounts and homes along with each spouse’s potential to obtain future income or assets is given weight in these decisions.

Clearly there are many things that can influence the outcome of a divorce settlement and no two divorces are alike. Being clear on the laws from the beginning is helpful for all people facing divorce in Illinois.


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