Illinois Divorce Source: Alimony and Property Distribution FAQs

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Alimony and Property Distribution FAQs

Information Provided by: Ernest Walton, Esq.

What property is subject to distribution?

Illinois law distinguishes between "marital" and "nonmarital" property. Only marital property is subject to equitable redistribution. The wealth or property acquired after a marriage ceremony is marital property unless:

it is acquired by gift or inheritance;
it is acquired in exchange for premarital property;
it is acquired after legal separation (note that property acquired during physical separation and prior to legal separation is still presumed to be marital property);
it is excluded by agreement;
it is obtained by judgment against the other spouse;
it represents an increase in value of other nonmarital property;
it is income from other nonmarital property; or
for stock options, the work which earned them was performed prior to marriage.

Property acquired before marriage, but in contemplation of marriage is also deemed to be marital property.

When is "nonmarital" and "marital" property converted to the other?

During a marriage, marital and nonmarital property is often mixed. Significant "sweat equity" may also be added to increase the value of the nonmarital property.

The following principles apply to redistribution at divorce:

Conversion by gift: When one spouse makes a gift of nonmarital property to the marriage, the gift is converted to marital property.
Contribution and reimbursement: In the clear absence of intent to make a "gift," contributions from nonmarital to nonmarital property, are reimbursable at divorce. However, the increase in value in value and the income received from the mixed property remains marital property.

The above principles of gift, contribution, and reimbursement also apply to transfers from marital property and effort to nonmarital property.

What factors are weighed in determining property distribution?

Marital property shall be divided equitably. That is the key standard. The following factors are weighed:

the contribution of each party in acquisition of marital property;
the dissipation of property by one party;
the value of nonmarital property;
the duration of the marriage;
the relevant economic circumstances of each spouse;
obligations and rights from previous marriages;
any valid agreement of the parties;
the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of the parties;
the custodial provisions for children;
whether maintenance or alimony is awarded;
the reasonable opportunity of each spouse to acquire capital following the divorce; and
the tax consequences to each party.

One should note that marital misconduct is usually not a relevant factor. It only becomes a relevant factor if it included dissipation of marital property; then equitable principles would favor the innocent spouse.

When is one entitled to alimony or maintenance?

Alimony or maintenance may be awarded on a temporary or permanent basis on consideration of the following factors:

The income and property of each party.
The needs of each party.
The earning capacity of each party.
The impairment of earning capacity due to time spent doing domestic duties.
The time necessary to increase earning capacity of a party.
The marital standard of living.
The marriage duration.
The age and health of the parties.
The tax consequences of other property distribution.
The contributions of the party seeking maintenance to the career of other party.
Any valid agreement by the parties.