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The basics of equitable distribution

Any Illinois resident who is going through a divorce may benefit from an understanding of how assets are divided. The legal aspects of a divorce settlement can be confusing, especially in a contentious divorce or one involving significant assets, but some basic information can help simplify these matters.

"Separate property" is defined as any property owned by a spouse before the marriage, gifts from a third party, the pain and suffering portion of a settlement received during the marriage or any inheritance received by a spouse. Separate property belongs to the spouse who acquired it and is generally not divided during a divorce unless it is commingled with marital assets or gifted to the other spouse. All other property is considered marital property regardless of who paid for it, who uses the property or whose name is on the title. This distinction is especially important with assets such as retirement accounts, which are titled only in the name of the worker yet are still distributed equally between spouses during a divorce proceeding.


Equitable distribution does not mean that each spouse automatically gets 50 percent of each asset. The judge has discretion to make a property division that is believed to be fair, based on consideration of a number of relevant factors. Typically, a judge will consider factors such as the duration of the marriage, the assets that each spouse brought into the marriage, the age and health of each spouse, each spouse's earning potential and the needs of any minor children. The judge may also consider the marital standard of living.

A divorce attorney may be able to help persons contemplating divorce value marital assets and determine what may be considered separate property. The attorney may also be able to help spouses negotiate a settlement out of court via mediation to make the process easier.

Source: Huff Post Divorce, "Understanding How Assets Get Divided In Divorce", Jeff Landers , June 14, 2013

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