In Illinois, the court will divide the estate of the parties on an equitable basis, which includes all assets and debts. This discretionary standard generally results in an equal division of the estate. However, the incomes, education levels, work experience and other factors play a role in the court’s decision with respect to the division of property.
Pursuant to section 503 of the Illinois Marriage and Dissolution of Marriage Act, all property acquired subsequent to the marriage is presumed to be marital property.
There are of course exceptions to this rule, which includes, among other things, (1) property acquired by gift, legacy or descent, (2) property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, legacy or descent, (3) property acquired by a spouse after a judgment of legal separation, and (3) property acquired before the marriage.
In Illinois, the foregoing exceptions would in turn cause the property to be characterized as non-marital property and therefore not subject to division by the court.
However, keep in mind that the presumption still exists as to the property’s status as marital as long as it was acquired subsequent to the marriage, such that the party claiming certain property as non -marital has the burden to prove that the property falls into one of the exceptions provided for by section 503.
If you are concerned that certain property acquired during the marriage may or may not be marital, you should bring this to the attention of your attorney immediately so that you can discuss the likelihood that the court will find in your favor or begin to pull together the evidence supporting your claim.
Similarly, just because you believe certain property to be non-martial, primarily because it was acquired prior to the marriage, you should discuss with your attorney. Just as there are exceptions to the finding of marital property, there are also exceptions to the finding of non-marital property.
As for the debts of the parties, the court will allocate on an equitable basis. There is no specific requirement or rule that the court is required to follow when dividing the debts. Also, even if you and your spouse have kept separate debt during the course of the marriage, if the debt was acquired subsequent to the marriage, the court will presume that it is marital property.
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