Factors Determining Property Division

by Wes Cowell; updated 21 December 2015 -- suggest a correction

 

When dividing marital property, marital debts, and other obligations the court is bound by specific procedures and twelve factors defined in the law.  The court must consider and weigh each factor.  Special rules apply to pensions and stock options and the attorney's fees for the divorce are treated as a special kind of marital debt.  Need advice? Callleave your info, or schedulescheduleschedule a consult.

 

Illinois is not a community property state – it is an “equitable division” state.  That means marital property and debts need not be divided 50 / 50.  Rather, the law requires property to be divided "equitably."  Many cases are resolved with 60/40, 70/30 splits and some even allocate ALL marital property to one spouse.  The court's property division decision is guided by a dozen factors set out in the law.  The court is prohibited from considering "marital misconduct" in dividing the property and debts.  Although your spouse may have engaged in several affairs and destroyed the relationship, the property will be divided fairly without acknowledging the damage done by those deeds.

 

The factors the court must consider are listed below. Over 95% of all cases settle and these twelve factors influence settlements more than anything else.  Call my office to work with an attorney who understands all the factors and is familiar with their application in court – you'll get a fairer settlement than simply settling for "50 / 50, across the board."

 

THE TWELVE FACTORS OF PROPERTY DIVISION:

 

1.  Each Party's Contribution:   750 ILCS 5/503(d)(1)  The court must consider the extent to which each party contributed "to the acquisition, preservation, or increase or decrease in value, of the marital or non-marital property . . . ."  Note the word "decrease" in the definition -- spending counts as a negative contribution.  

 

All other things being equal, the party who brought in most of the income during the marriage should leave with most of the assets when it's over. Likewise, a party who racks up lots of debt should expect to walk away with a lot of debt.  Courts take this seriously and add up the pennies. Decisions allocating fractions of percentages are not uncommon – 59.5% : 40.5% in one well-known case.

 

Attorney's Fees:  One subset of a party's "contribution to marital property" is the amount a party spends on attorney's fees in the divorce.  It's common in contested cases for the parties to pay their respective attorneys from marital funds as the case goes along.  Some parties reason that they'd rather spend the money on lawyers than see their spouse get it.  When making the final property division, those payments are attributed to each side as a "decrease attributable to an advance from the part[y's] marital estate under [750 ILCS 5/501(c-1)(2)] . . . . That thwarts the "I'd-rather-give-it-to-the-lawyers" strategy.  

 

Homemaker Contribution: The definition of "contribution" includes "the contribution of a spouse as a homemaker or to the family unit."  750 ILCS 5/503(d)(1)(ii).  Illinois courts look at marriages as "joint enterprises;" that is, like business partnerships. These businesses take in money, spend money, and keep themselves going. One partner may go to work every day to bring in the money while the other partner stays home all day to spend money, keep house, and rear children.  Many cases say the contributions of a homemaker are substantial and can be considered on equal footing with financial contributions.

 

The homemaker contribution is not a sure-thing.  Sometimes (no children, lousy homemaker) it is the weakest argument in a good attorney's arsenal for property division.  Several cases have concluded that little or no property award should be made where there are no children and where the homemaking essentially went undone. In other cases where the homemaking and child rearing were shared roughly equally, the homemaker contributions of each spouse cancels out the other. Call my office to maximize your settlement or trial position.

 

There is no formula in the law for determining how much the "homemaker contribution" is worth – each case is decided on its own unique facts and circumstances. Evidence of the homemaker contribution must be adequately prepared and properly presented – the court will not assume it and build in an automatic award.  Work with a knowledgeable and experienced attorney, familiar with the long line of cases interpreting homemaker contribution awards and who can prepare – or prepare to defend against – the argument.

 

2)  Dissipation by Each Party:  750 ILCS 5/503(d)(2)  Dissipation is wasting or hiding assets.  Illinois has developed a robust library of cases defining and explaining how to resolve issues of dissipation.  Go read my article on dissipation.  Resolution of dissipation claims is baked into property division.

 

Formal Notice Required:  A formal notice of a claim for dissipation must be filed with the court at least 60 days before trial or 30 days after discovery closes, whichever is later.  750 ILCS 5/503(d)(2)(i).  At a minimum, the notice must be served on the other side and include:

  1. the date or period of time during which the marriage was breaking down, 750 ILCS 5/503(d)(2)(ii)

  2. an identification of the marital property alleged to have been dissipated, 750 ILCS 5/503(d)(2)(ii)

  3. the date or period of time during which the dissipation occurred, 750 ILCS 5/503(d)(2)(ii)

  4. a certificate of service filed with the court clerk.  750 ILCS 5/503(d)(2)(ii)

 

Retroactive Limitation:  Dissipation claims can go back only 5 years prior to filing the Petition for Dissolution and are further limited by a 3-year "you-should-have-known-this-was-happening" rule.  750 ILCS 5/503(d)(2)(iv).

 

Example:  You just filed for divorce in a ten-year marriage.  Your spouse has been wasting assets all along (let's say, gambling).  Early in the marriage you sometimes accompanied your spouse to the casino, but you learned of the enormity of the problem and did what you could to stop it.  That led to frequent arguments as you discovered more evidence of wasteful gambling losses.  In the divorce, the law will let you claim dissipation for wasted assets (gambling losses) going back only five years -- you can't go back to the beginning of the marriage.  Your spouse will argue that the dissipation should be limited to only the last three years because you knew or should have known, of the dissipation and did nothing to stop it.

 

3)  Value of Property Assigned: 750 ILCS 5/503(d)(3)  Although the law doesn't say so specifically, this factor includes the value of marital and non-marital property assigned to each spouse.  If one spouse has significant non-marital assets, the court may find justice in awarding a disproportionate share of the marital assets to the other.  Similarly, the spouse with a sizeable non-marital estate may be saddled with a disproportionate share of the marital debt. There is no formula for these allocations.   Call my office for all current case law.  

 

4) Duration of the Marriage:  750 ILCS 5/503(d)(4)  This factor serves dual purposes: in long marriages it operates as sort of a multiplier of the homemaker contribution; in short marriages it works to prevent gold-diggers from marrying millionaires one day and divorcing them the next to acquire a big piece of wealth.  

 

5) The Relevant Economic Circumstances, Timing, and a Home for the Kids:   750 ILCS 5/503(d)(5)  The court has the power to allocate property to achieve substantial equity between the parties. To do so, the court must consider the economic circumstances of each spouse. One may have a secure career and guaranteed future while another may be unemployed or unemployable. Courts sometimes (but not always) allocate more property to the less financially secure party as a way of affording them some additional, albeit nominal, security.  

 

The court must also consider the timing of the property division.  Some assets may not be immediately available and some income streams may be delayed.

 

The law also requires the court to keep the kids in mind when deciding what to do with the marital residence.  When financially feasible, the court will try to keep the kids in the former marital residence -- in the same school district, near their friends, etc.  It's not uncommon for couples to agree to keep the kids and one parent in the home for a number of years and to let the mortgage hang over both parents with an agreed date (after high school graduation) to refinance the mortgage and financially divorce with spouses.

 

6)  Prior Marriages:  750 ILCS 5/503(d)(6)  When dividing property the court must consider if one or both spouses receives or pays child support or maintenance as a court-ordered obligation from a prior relationship.

 

7)  Agreements: 750 ILCS 5/503(d)(7)   Prenuptial and post-nuptial agreements can be very flexible and very enforceable. Some agreements identify as non-marital property specific items. Some agreements even exclude all property acquired during the marriage.  Pre- or post-nuptial agreements may also call for cash payments to one spouse in lieu of, or in addition to specific property. 

 

8)  Situational status:  750 ILCS 5/503(d)(8)  The court must consider "the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties" when dividing assets and liabilities.

 

9)  Custody:  750 ILCS 5/503(d)(9)  The court must consider the "custodial provisions" for any children.  This language predates the 2016 amendments to the law (which eliminated "custody" in favor of "parental responsibility").   Although "custody" has been purged from the law, the court will still look to the costs of rearing the children.  It may make sense to try to keep the kids in the home and, therefore, one parent may be awarded the home as part of the property division.  See, No. 5, above.  

 

10)  Maintenance:  750 ILCS 5/503(d)(10) Prior to 1993, the court could award maintenance only if the property division could not achieve financial equity between the parties.  Illinois law has changed since then and today a court may make an award of maintenance in lieu of, or in addition to, property division. Courts like finality, however. They do not like to see the parties come back a few years later to have another fight.  Making a disproportionate property division may obviate the need for maintenance.  By doing so the court eliminates the chance for something to go wrong.  Those required to pay maintenance sometimes fail to pay the correct amount, they fail to pay on time, or they fail to pay at all.  Recipients sometimes unwittingly precipitate termination events. New circumstances befall one party that may warrant a modification, suspension, or termination of maintenance.  All of these uncertainties can be removed by a disproportionate property division and a denial of maintenance.

 

Regardless of your objective – obtaining or denying maintenance or an equal or disproportionate property award – work with an attorney who knows the law and the cases.  Call my office for help maximizing your settlement and trial potential.

 

11)  Future Income:  750 ILCS 5/503(d)(11) Illinois law directs judges to consider "the reasonable opportunity of each spouse for future acquisition of capital assets and income."  Both spouses work in most marriages.  Although many spouses put their career on hold when children are small, they usually resume their place in the workforce before long.  This lag, however, disrupts and can even halt an income stream that otherwise would have grown over a lifetime.   This factor allows the court to apportion more property to a spouse bearing an income disadvantage.

 

12)  Taxes:  750 ILCS 5/503(d)(12) Illinois' divorce law instructs judges to consider the tax consequences of the property distribution in any contested divorce. Your divorce attorney must also be a good tax attorney. A miscalculation regarding taxes could cost you your entire property award. It is not uncommon, for example, for a spouse to be awarded stock or other investments in lieu of cash – only to learn later that to convert the stock to cash, she must pay a huge tax bill.

 

Property transfers between spouses incident to a divorce are non-taxable.  Child support is non-taxable.  Maintenance payments are usually taxable, but the parties can agree to make maintenance payments non-taxable.  Work with a lawyer experienced in these matters.  Call my office to discuss the tax implications in your case.  

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