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Property Distribution
In Illinois, property and debts are divided by the following formula:
First, the court will decide what property is marital and what property is non-marital. Generally, marital property is any property acquired during the marriage. The Act states the following exceptions that would not be considered marital property even though they were acquired during the marriage:
- Property acquired by gift, legacy or descent.
- Property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, legacy, or descent.
- Property acquired by a spouse after a judgment of legal separation.
- Property excluded by a valid agreement of the parties.
- Any judgment or property obtained by judgment awarded to a spouse from the other spouse.
- Property acquired before the marriage;
- The increase in value of property acquired by a method listed in paragraphs 1 through 6 of this subsection, 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 Section C of this section.
- Income from property acquired by a method listed in paragraphs 1 through 7 of this subsection, if the income is not attributable to the personal effort of the spouse.
Illinois Marriage & Marital Dissolution Act 750 ILCS 5/503
Unless property acquired during the marriage fits into one of these exceptions, it should be considered marital property. It is important to note that this is property acquired by either spouse so it does not matter whose name may be on a title or a deed to any given item; it is still considered marital property.
In this way, the court determines whether the property is marital or non-marital. Non-marital property is simply assigned to the spouse that owns it; marital property is divided "equitably" between the spouses. Normally, this "equitable" division of the marital property is a fifty/fifty (50/50) split, but it does not always have to be so.
There are other issues such as contribution and dissipation that can arise on or around the times that parties are considering a divorce. A full discussion of the issues surrounding these two legal conceptions is beyond the scope of this introduction. These theories are highly fact specific, and it would be much better to discuss how these concepts fit in your case personally with a lawyer.
Maintenance, which was formerly known as alimony, is also a highly fact-specific issue. The Illinois Marriage and Dissolution of Marriage Act gives twelve factors that are to be considered by the court in deciding what, if any, maintenance is to be awarded. It is worth noting that the twelfth factor is "any other factor that the court expressly finds to be just and equitable." Accordingly, without knowing anything about the specific facts of a given situation, it is very difficult to give general guidelines on the issue of maintenance.
On the other hand, child support, under Illinois Law can, in most cases, be calculated with certainty. The statute generally provides that certain percentages of the non-custodial spouse's "net income" (in determining "net income," there are specific deductions which are allowed by statute) is generally considered the minimum amount of child support. Although the statute states that this is the minimum amount of child support, that minimum is routinely awarded in cases unless there are special circumstances warranting either an increase or a decrease in that amount.
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