One of the most contentious parts of a divorce often concerns the couple's property. When a court is dissolving a marriage, it will first look at all of the parties' property to determine whether it is marital or non-marital property. In Illinois, non-marital property includes property acquired before the marriage, by gift, or by inheritance, and any income derived from or increase in value of such non-marital property. 750 ILCS 5/503(a). Additionally, the parties may exclude property from the marital estate by valid agreement. Id. Because it is not part of the marital estate, the court may not divide non-marital property, nor may it assign it to the other party; it must assign it to its proper owner. 750 ILCS 5/503(d).
All other property acquired during the marriage is assumed to be marital property, and is therefore subject to equitable distribution upon divorce. Id. Under the Illinois Marriage and Dissolution of Marriage Act (IMDMA), the court may look to the following twelve factors in determining the distribution of marital property: each party's contribution to the marital estate (including the contribution of a homemaker); the dissipation by each party of any property; the value of each party's non-marital estate; each spouse's economic situation, including considering awarding the marital home to the primary custodian of the children; any obligations or rights arising from prior marriages; any agreement by the parties; the age, health, occupation, income, skills, employability, estate, liabilities, and needs of each party; custodial provisions for children; whether the apportionment is in place of or in addition to maintenance; income-earning potential; and tax consequences. Id.
It is important to understand that these factors are in place in order for the court to come to an equitable result, not an equal one. In re Marriage of Joynt, 375 Ill.App.3d 817 (Ill. App. 3d Dist. 2007). Where, for example, the trial court awarded a 60/40 division in favor of the wife, among other things, the appellate court upheld the award, stating that the trial court had adequately considered the statutory factors. Id. at 920. Many times, then, the appropriate and equitable division will actually be numerically unequal. See In re Marriage of Walker, 386 Ill.App.3d 1034 (Ill. App. 4th Dist. 2008) (affirming 59.7/40.3 division); Joynt, 874 N.E.2d at 920.
Although the court is required to consider all of the statutory factors, it is not necessarily required to explain which factors it weighed most heavily. See Walker, 386 Ill.App.3d at 1042-44. The trial court's 59.7/40.3 distribution was upheld where, in giving its order, the trial court stated it "considered the evidence and the arguments and [applied] the statutory considerations with regard to maintenance and property division," and did not explain its reasoning. Id. at 1037. In affirming the trial court's property division, the appellate court held that the division was not an abuse of the trial court's discretion, despite the fact that the court provided no explanation of its reasoning. See id at 1044. The abuse of discretion standard, which is always the standard applied when reviewing property divisions, is high, particularly in the case of divorce, where the trial court is granted broad discretion, and as a result, property divisions are frequently upheld on appeal. See e.g. Walker, 386 Ill.App.3d at 1044; Joynt, 874 N.E.2d at 920.
When parties' appeals are denied, then, they may be inclined to ask the court for a modification of the judgment. Unfortunately for the unhappy party, the standard for modification is even higher. The IMDMA provides that "the provisions as to property disposition may not be revoked or modified, unless the court finds the existence of conditions that justify the reopening of a judgment under the laws of this State." 750 ILCS 5/510(b). Such conditions include fraud, misrepresentation, concealment, coercion, mutual mistake of fact, and the like, and in the event that one of those conditions existed, the action must be brought within two years. 12 Ill. Prac., Fam.L. 750 5/510 (2011 ed.) (citing 735 ILCS 5/2-1401). Ultimately, property distributions are very rarely modified after they have been entered. See e.g. In re Marriage of Hubbard, 215 Ill.App.3d 113, 116 (Ill. App. 2d Dist. 1991).
Clearly, the court's property distribution, equitable though it may be, is not always agreeable to the parties, and unfortunately, when one party feels slighted by the judgment, it is exceedingly difficult to change. With that in mind, it is often to the parties' advantage to come to an agreement outside of court, if at all possible. The truly conscientious couple will have signed a premarital agreement concerning, among other things, the disposition of property upon divorce. However, parties to a divorce can work with their attorneys to come to property agreements that meet both parties' needs. Such property settlements are also non-modifiable, as they are ultimately incorporated into a judgment by the court, but hopefully both parties are satisfied with the agreement and will not need to seek modification.
Distribution of property upon divorce is a complex issue, and the more assets the parties have, the more complex the distribution will become. The goal of both the courts and the state of Illinois is to come to an equitable result while financially disentangling the parties to the extent that it is possible. When the court is called on to distribute property, then, it will do so with all of the statutory factors in mind; however, the broad discretion given to domestic relations courts often makes it difficult to predict the outcome. When that outcome is not agreeable to one of the parties, that party will have to show either an abuse of the trial court's discretion on appeal or conditions that justify reopening the judgment in a petition for modification. These standards make it difficult to change the trial court's property distribution, so it is often in everyone's best interest if the parties, with the help of their attorneys, can come to an agreement outside of court.