Divorce & Family Law Blog | Patrick Markey, P.C., Chicago, IL

Most people associate divorce with dividing property equally (50/50).  It is true that many cases do end up to a be a 50/50 division.  I believe that is the case because it is just the easist way to do it.   Here is an example:  A couple is married for 50 years.  One spouse (Spouse A) consistently earns 30-40% more in annual net income than the other spouse (Spouse B).  They do not have children and both worked during the marriage.  Both parties generally had home making duties of cleaning, shopping, making food, etc.  Spouse B did a little bit more of that than Spouse A. Section 503 of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) states  one factor the court must consider in allocating property is “ the contribution of each party to the acquisition, preservation, or increase or decrease in value of the property”

Fast forward to the trial in this matter.  In theory, it looks like Spouse A should get better than 50% of the property because he acquired more of the marital property during the marriage.  Spouse B did do more housework, but she was not a stay at home person taking care of Spouse A.  How is the Judge going to figure this out?  They aren’t.  It is too complicated and there is no easy way to figure it out.

More wrenches

What if spouse B has saved all of her money during the marriage in 401(k) assets or other savings?  What if Spouse A spent all of his extra money on himself and had no money saved when the parties started the divorce.  Sure, some of Spouse A’s money was spent on Spouse B like dinning out or paying expenses.  However, over a 10 year marriage how would a party or a Judge quantify all of these variables.  It can be done, but it is difficult.  The court is probably going to just do an equal division of property.  Sometimes there is debt involved.  Can you invision Spouse A having a lot of debt in his name?  The court might stick Spouse A with his debt and give him less of the assets if Spouse B could prove with bank and credit card statements that Spouse B dissipated marital assets by not saving and spending it all on himself.

Property Acquired by a Spouse After the relationship has ended and parties have lived separate an apart.

There is no common law divorce in Illinois.  I have seen cases where parties have been separated for 10 years before filing for divorce.  In that time period one of both spouses acquire property and debt on their own.  A good argument can be made and is supported by Illinois case law, that the spouse who acquired property after the parties were no longer living as husband and wife should be awarded that property or a larger share of it.  The theory is that the other spouse did nothing to contribute to that acquisition of that property since the marriage was over and the parties were living separate lives in separate residences.

This argument does not work so well if the parties have been separated for less than 2 years (the statutory waiting period in Illinois).  However, it it has been more than 2 years (or even 10 years), the party who acquired property such as real estate, 401(k) or even lottery winnings should argue hard for the court to award that party a larger share of the assets acquired after the separation if not all of them.

One should not assume that the court will automatically do (50/50).  The term (50/50) or dividing property equally does not appear in Section 503 of the IMDMA which is the law on property division.  If you have facts which support an unequal division of property, you should make the argument to the court.

This entry was posted on Sunday, November 22nd, 2009 at 2:01 pm and is filed under Divorce Litigation. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.