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Equitable division: Will you get your fair share in the divorce?

Several states -- not Illinois -- call for an "equal" division of marital property when two people get divorced. The language in Illinois is "equitable division," which does not guarantee a 50-50 split.

In fact, and especially if complex and high-value assets are involved, an equitable distribution of property may favor one party significantly more than the other. If you want to assert your right to marital property and ensure your future financial security, it's important to take the right steps now, as well as obtain dedicated legal counsel to protect your interests.

Get an accurate inventory and valuation of property.

Assets and debts acquired during the course of the marriage are generally divisible between the spouses when they divorce. To ensure that you get your fair share, it's important to accurately categorize divisible property and assess its value.

This can become complicated when complex assets are involved, so it's best to have professional guidance from start to finish. What you don't want is for an inaccurate valuation to result in a settlement that unduly favors the other side. Additionally, during negotiations, there may be trade-off options that are not obvious without a forensic accounting of assets and debts.

Depending on the circumstances, the types of property to consider may include:

  • Business assets, which may include intellectual property
  • The increase in value of the business since the marriage started
  • Retirement plans such as 401(k)s, IRAs and pensions
  • Real estate, including the family home and any vacation or rental properties
  • Investment holdings
  • Family heirlooms and any high-value home furnishings

Can any of the property be categorized as separate?

Separate property in a divorce is not necessarily divisible between the spouses. The difficulty with separate property, though, is that it must be traced back to its source if it is to be considered separate.

For example, the value of a business owned by only one spouse on the marriage date may be kept out of the settlement. Another example of separate property is any inheritance received by only one spouse; the inheritance, to be kept out of the settlement, must not have become mingled with marital property.

Again, a forensic accounting of marital and separate property can determine which category applies. A thorough review of assets can also determine if one party is trying to hide assets that would otherwise be divisible.

Don't hesitate to speak with an experienced divorce lawyer about your goals and concerns.

For more on divorce and property division in Illinois, please see McCarthy & Allen's divorce and family law overview.

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