Property division is often one of the most challenging issues to resolve in a divorce. In Illinois, this division is guided by the principle of “equitable distribution,” a term that doesn’t necessarily mean a strict 50/50 split of marital assets. Instead, equitable distribution refers to a fair allocation of the family’s assets, which may or may not result in an equal division, depending on various factors relevant to the couple’s situation.
What is an “Equitable Distribution”?
Unlike community property states where marital property is typically divided equally, equitable distribution in Illinois aims for fairness based on you and your spouse’s contributions, needs, and other specific circumstances. Although many people assume that fair automatically means equal, this is not always the case. A 50/50 division can feel fair in many situations, but Illinois courts have the flexibility to award different percentages to each party, depending on what they consider equitable.
How Does Equitable Distribution Work?
The process of equitable distribution begins with listing all your assets, including everything acquired during your marriage. Once the inventory is complete, the court will distinguish between marital and non-marital assets. Marital assets are those acquired during the marriage, while non-marital assets, such as inheritances or assets owned before the marriage, generally remain with the spouse who owns them—provided they have convincing evidence of their origins. Over time, assets can become mixed or “commingled,” making it challenging to establish clear ownership. When this happens, the court may decide to treat the asset as marital and subject to division.
Factors that Influence Equitable Distribution
The court examines a wide range of factors to determine what is fair, including:
- Each spouse’s financial situation and income potential.
- Contributions to marital property, whether financial or otherwise.
- Length of the marriage.
- Any prenuptial agreements.
- The presence of significant non-marital assets that may influence the division of marital assets.
For example, in cases where one spouse possesses substantial non-marital wealth, such as an inheritance, the court can favor the spouse with lesser means. A notable case involved a husband with a $7 million inheritance and a modest marital estate of around $250,000. In this instance, the court awarded the wife an 80/20 split of the estate in her favor, recognizing that a 50/50 division wasn’t equitable.
Collaborative Divorce and Equitable Distribution
In Collaborative Divorce cases, the process can differ significantly. You and your spouse negotiate terms based on your unique needs and interests rather than leaving the decision to a judge. Collaborative Divorce allows you to create a customized version of equitable distribution that may involve compromises reflecting personal priorities. This approach can reduce the cost and time spent in litigation and lead to a more satisfying outcome.
Pros and Cons of Equitable Distribution
While equitable distribution aims to create fairness, it also opens the door to extensive negotiations and potential disputes. Since there is no strict formula, you may each have arguments for what you consider fair, prolonging the divorce process. This flexibility, though valuable, can become a source of contention, as you each might believe your version of “fair” is more accurate.
Equitable distribution offers a balanced approach that considers multiple factors that are unique to each marriage. While this system strives for fairness, it also leaves room for subjective interpretations, which can either foster collaboration or lead to prolonged disputes. Couples willing to engage openly may find equitable distribution beneficial, especially in a Collaborative Divorce where fairness is mutually agreed upon, rather than dictated by the court.
The Law Offices of Patrick Markey, P.C., are dedicated to the Collaborative Divorce Process and can help you address and resolve issues in the divorce process.
Our offices are located at 108 Stetson Avenue, Suite 3500 in Chicago, Illinois. You may call us at 312-223-1764.