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Five Most Common Misconceptions About Property & Divorce

If you are considering a divorce, you may be surprised by these common misconceptions. Please take a moment to review them.

Myth One: "I will get a greater share of property if my spouse is guilty of adultery or other misbehavior that constitutes grounds for divorce."

Reality: The Illinois Marriage and Dissolution of Marriage Act (IMDMA) provides for division of property without regard to marital fault[1]. Illinois still retains 12 grounds for divorce[2], however, the most recent and most often-used is "irreconcilable differences." The statute requires a showing that irreconcilable differences have caused the irretrievable breakdown of the marriage, that efforts at reconciliation have filed, or that future attempts at reconciliation would be impracticable and not in the best interest of the family[3]. The parties must have lived separate and apart continuously for more than two years, though that period can be reduced to six months upon written stipulations of both parties.

Myth Two: "The IMDMA requires courts to divide marital property 50-50."

Reality: The IMDMA does not require an equal division of marital property; it requires a just division[4]. Courts often award the economically disadvantaged spouse a greater share of the marital estate.

Myth Three: "The marital estate should not be valued when the parties separated or when the petition for dissolution was filed."

Reality: The value of the marital property is typically measured on the date of trial, not at the time of physical separation or when the petition for dissolution was filed[5].

Myth Four: "The stock is my name, so I'll get it in the divorce."

Reality: As previously stated, the court divides the marital assets in just proportions upon dissolution without regard to which spouse holds title, unless the property is classified as non-marital.

Myth Five: "My spouse inherited property during the marriage in his/her name alone. I will be entitled to my share of it when we divorce."

Reality: Section 503(a) of the IMDMA identifies and awards non-marital property to the party owning it as long as it has not been transferred into co-ownership with the spouse. Inherited property owned individually is not marital property, so you may not be entitled to inherited property.

Extracted from "The Real Estate Lawyer's Divorce Primer (and the Divorce Lawyer's Guide to Real Estate," by Margaret A. Bennett, Illinois Bar Journal, 1998 

1) In Re Marriage of Rogers, 85 Ill 2d 217, 422 NE2d 635 (1981).
2) 750 ILCS 5/401.
3) 750 ILCS 5/401 (a)(2).
4) In Re Marriage of Dunseth, 260 Ill App 3d 816, 633 NE2d 82 (4th D 1994); In Re Marriage of Minear, 287 Ill App 3d 1073, 679 NE2d 856 (4th 1997).
5) Hollensbe v. Hollensbe, 165 Ill App 3d 522, 519 NE2d 40 (5th 1988).

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