Orland Park Division of Property Lawyers

Skilled Attorneys Assisting Clients with the Division of Marital Assets in Orland Park and Nearby Cook County and Will County Communities

Figuring out how to divide your marital property can be one of the most stressful and confusing parts of the divorce process. You’re likely worried about your financial future, your home, your retirement savings, and making sure things are divided fairly. Understanding Illinois law is the first step toward protecting your rights and reaching a secure financial outcome.

At Pucher & Ranucci, we help Orland Park clients navigate the complexities of property division, ensuring a fair outcome. We know the law, we understand the anxieties involved, and we’re committed to providing clear, strategic guidance every step of the way.

Illinois Property Division: Equitable Distribution Explained

Illinois operates under the principle of equitable distribution regarding the division of assets during a divorce. This is a foundational concept that potential litigants must thoroughly understand. Equitable distribution does not automatically mandate an equal, 50/50 split of all assets. Instead, the term “equitable” signifies fairness. What constitutes a fair division is highly dependent on the particular facts and complex circumstances unique to each case. The court is tasked with reviewing a broad spectrum of factors, outlined in state statute, to reach a resolution that is considered just for both parties.

Marital vs. Non-Marital Property: A Key Distinction

The initial and most fundamental step in the property division process is classifying every asset as either marital property or non-marital property. This distinction is paramount because, under Illinois law, only property categorized as marital is subject to division in a dissolution of marriage proceeding, which operates under the principle of equitable distribution.

The Foundation of Classification: Equitable Distribution

Illinois is an equitable distribution state, meaning that marital assets are divided in a fair, but not necessarily equal, manner. The bedrock of this system is the accurate identification and valuation of the marital estate. If an asset is deemed non-marital, it remains the separate property of the owning spouse and is removed from the division calculation entirely. The date of marriage marks the starting point for acquisition, and the date of judgment (or sometimes the date of a settlement agreement) establishes the cutoff for property accumulation. This two-part classification is the gatekeeper to the distribution phase of the case.

Marital Property: The Statutory Presumption

As a general rule, any property acquired by either or both spouses from the date of the marriage until the date of the judgment of dissolution is presumed to be marital property. This holds true regardless of whose name the title or account is held in—the law looks past legal title to the source and timing of the acquisition. The burden of overcoming this statutory presumption lies with the spouse claiming the property is non-marital, requiring clear and convincing evidence to support the claim.

Examples of assets typically falling under this category include:

• Income and Wages: All compensation, salaries, and bonuses earned by either spouse during the course of the marriage.
• Real Estate: The marital home, vacation homes, or investment properties purchased during the marriage.
• Retirement Funds: This is often a critical area. The portion of any retirement asset (pensions, 401(k)s, IRAs) that accrued in value during the marriage years is considered marital, regardless of when the plan was opened. Calculation of this marital share often requires a Qualified Domestic Relations Order (QDRO) or similar instrument for division.
• Investments and Accounts: Stocks, bonds, cryptocurrency, mutual funds, and bank accounts acquired or opened during the marriage, even if the account bears only one spouse’s name.
• Appreciation of Non-Marital Property: An often-misunderstood component is the increase in value of non-marital property. If a non-marital asset (like a house owned before marriage) appreciates during the marriage due to the direct contributions, effort, or funds of either spouse (or both), that increase in value is considered marital property, though the initial non-marital asset base remains separate. Proving the contribution that caused the appreciation is a complex task.

Non-Marital Property: Tracing and Protection

Non-marital property is essentially shielded from division. It typically consists of property acquired outside the marital relationship and is defined by the following conditions:

• Pre-Marital Assets: Assets owned individually by a spouse prior to the date of the marriage.
• Gifts and Inheritance: Property received by one spouse during the marriage as a gift from a third party or through inheritance.
• Exchange: Property obtained in exchange for non-marital property (a concept known as tracing).
• Exclusion by Agreement: Assets explicitly excluded from the marital estate by a valid and enforceable prenuptial or postnuptial agreement.

The maintenance of non-marital property is key to its protection. The concept of tracing is central here: it is the legal process of demonstrating, through clear and convincing evidence (such as bank statements, deeds, or transaction records), that an asset obtained during the marriage was acquired solely in exchange for property that was non-marital. The spouse claiming non-marital status carries the full burden of proving the origins of the funds or assets.

Conversely, the doctrine of commingling represents the greatest threat to non-marital property status. Commingling occurs when non-marital funds are mixed indiscriminately with marital funds (e.g., an inheritance deposited into a joint checking account used for household expenses) or used to substantially improve or maintain marital property without careful documentation. If the original non-marital contribution cannot be clearly and distinctly traced, the entire asset may be transmuted—or changed—into marital property, becoming subject to division.

The initial and most fundamental step in the property division process is classifying every asset as either marital property or non-marital property. This distinction is paramount because, under Illinois law, only property categorized as marital is subject to division in a dissolution of marriage proceeding, which operates under the principle of equitable distribution.

The Complexity of Tracing and Commingling

A significant challenge arises when non-marital assets are mixed, or “commingled,” with marital assets. For example, if a spouse deposits an inheritance (non-marital property) into a joint checking account (marital property) and then uses those funds for household expenses, the non-marital character of that inheritance can be jeopardized. To protect a claim that an asset remains non-marital, the spouse asserting the claim must provide clear evidence showing that the original non-marital asset can be precisely traced and identified. The failure to successfully trace such funds may result in the entire asset being reclassified as marital property subject to division.

Factors the Court Considers for Equitable Distribution

Once property has been classified and valued, the court examines a statutory list of factors to determine the truly fair division of the marital estate. These considerations go beyond financial figures and delve into the context of the marital partnership. The factors considered by the court include:

1. Contribution: The specific contribution of each party to the acquisition, preservation, or increase or decrease in value of the marital and non-marital property. This includes non-monetary contributions, such as caring for the home and children.
2. Dissipation: The value of the property set apart to each spouse and the potential for one spouse to have “dissipated” (wasted or misused) marital funds when the marriage was undergoing an irreconcilable breakdown.
3. Duration of Marriage: The length of the marriage is a key element in understanding the extent of intertwined finances.
4. Economic Circumstances: The relevant economic circumstances of each spouse when the division is to become effective, including the desirability of awarding the family home (or the right to live there for a reasonable period) to the custodial parent.
5. Prior Obligations: Any obligations or responsibilities arising from a prior marriage or from a shared non-marital relationship.
6. Custodial Provisions: The custodial provisions for any children.
7. Future Prospects: The reasonable opportunity of each spouse for the future acquisition of capital assets and income.
8. Tax Consequences: The tax consequences of the property division upon the respective economic circumstances of the parties.

Identifying and Valuing the Assets within Your Marital Estate

To divide property fairly, you first need to know what you have and what it’s worth. This involves a thorough inventory and valuation of all marital assets.

Common Types of Marital Assets

As we’ve discussed, marital assets can include a wide range of property, such as:

• Real Estate: This often includes the marital home, but it can also include investment properties, vacation homes, or land.
• Retirement Accounts: This includes 401(k)s, IRAs, pensions, and other retirement savings plans. The portion accumulated during the marriage is generally considered marital property. Dividing certain types of retirement accounts often requires a special court order called a Qualified Domestic Relations Order (QDRO) to ensure proper distribution and avoid premature tax penalties.
• Bank Accounts: Checking accounts, savings accounts, and money market accounts.
• Investments: Stocks, bonds, mutual funds, and other investment vehicles.
• Business Interests: If one or both spouses own a business, the business itself (or a portion of it) may be a marital asset.
• Vehicles and Personal Property: This includes furniture, appliances, jewelry, artwork, collectibles, and other personal belongings.

Valuation Methods

Determining the value of assets is essential. While bank accounts and publicly traded stocks are straightforward, businesses and pensions require a more rigorous and often costly assessment. Common valuation methods include:

• Real Estate Appraisals: A professional appraiser determines the fair market value of real estate.
• Business Valuations: A qualified business valuator (often a CPA or other financial professional) determines the value of a business interest by reviewing financial statements, goodwill, and future earning potential.
• Actuarial Valuations: Retirement plans, particularly defined benefit pensions, are valued using specialized actuarial methods that calculate the present-day worth of a future stream of income.
• Account Statements: Bank statements, investment statements, and retirement account statements show the current value of those assets.

The Factors Guiding “Fairness” in Equitable Distribution

To ensure a division is truly “equitable,” the court does not simply guess. Illinois law provides a specific set of factors that a judge must consider when determining the division of marital property. This comprehensive consideration moves the process far beyond a simple accounting exercise and makes the case fact-intensive.

The court reviews all relevant economic circumstances and facts of the parties, including, but not limited to:

1. Each Spouse’s Contribution: The contribution of each spouse to the acquisition, preservation, or increase in value of the marital and non-marital property. This includes non-economic contributions to the family unit as a homemaker or parent.
2. Dissipation of Assets: The dissipation (or waste) by each party of the marital property. Dissipation refers to a spouse using marital assets for a non-marital purpose while the marriage is undergoing an irreconcilable breakdown.
3. Value of Allocated Property: The value of the property allocated to each spouse.
4. Duration of the Marriage: How long the marriage lasted.
5. Economic Circumstances: The relevant economic situation of each spouse at the time the property division is to become effective.
6. Prior Marriages: Any obligations and rights arising from a prior marriage of either party.
7. Prenuptial or Postnuptial Agreements: Any valid agreement between the parties that governs the division of assets.
8. Age, Health, and Employability: The age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each spouse.
9. Custodial Parent Status: Whether the party is the custodial parent of a child to whom the responsibility of custody has been allocated.
10. Future Acquisition: The reasonable opportunity of each spouse for future acquisition of capital assets and income.
11. Tax Consequences: The tax consequences of the property division upon the respective economic circumstances of the parties.
12. Non-Marital Property Value: The value of the non-marital property assigned to each spouse.

These twelve factors demonstrate that the division is highly individualized, often resulting in a distribution that is not exactly 50/50, but rather one tailored to the financial realities and future needs of both individuals.

Marital Debts and Enforcement

Marital debts are also divided fairly, though not necessarily equally, in the divorce. These debts can include mortgages, car loans, credit card balances, medical bills, and other liabilities that were incurred during the marriage.

The division of these debts is often subject to negotiation and can be influenced by factors such as each spouse’s income, earning capacity, and the nature of the debts.

When determining the division of marital debts, consider the following:

• Type of Debt: Some debts, like mortgages or car loans, are tied to specific assets, while others, like credit card debt, may be shared more broadly.
• Income and Earning Capacity: The ability of each spouse to repay the debt can influence how it is divided.
• Responsibility for Incurring the Debt: If one spouse was primarily responsible for incurring a particular debt, this might affect its division.

It is crucial to understand that a divorce judgment that allocates a debt to one spouse does not automatically remove the other spouse’s name from the obligation as far as the original creditor is concerned. 

If a credit card held jointly is allocated entirely to one spouse, and that spouse fails to make payments, the other spouse’s credit rating can still be negatively affected, and the creditor can still pursue payment from them. 

For this reason, legal practices often suggest strategies to protect the client, such as refinancing joint debts into the responsible spouse’s sole name or including indemnity clauses in the settlement agreement that obligate the responsible spouse to pay the debt and hold the other spouse harmless. The division of debt requires careful planning to protect future financial stability.

Resolution and Legal Representation

The vast majority of Illinois divorce cases are resolved through settlement rather than trial. Settlement allows the parties, often with the assistance of their respective legal practices, to maintain control over the outcome and tailor the division to their specific priorities, rather than having a judge impose a decision based solely on the statutory factors. 

The legal professional assisting the client helps assemble the necessary financial evidence, including appraisal reports and tracing documents, and structures an argument that persuasively connects the facts of the case (such as a spouse’s non-economic contribution or an instance of dissipation) to the statutory factors. 

Whether resolved through negotiation or a formal presentation in a contested hearing, the goal remains the same: to secure a financial division that is determined to be equitable under Illinois law.

Identifying and Valuing the Assets within Your Marital Estate

To divide property fairly, you first need to know what you have and what it’s worth. This involves a thorough inventory and valuation of all marital assets.

Common Types of Marital Assets

As we’ve discussed, marital assets can include a wide range of property, such as:

• Real Estate: This often includes the marital home, but it can also include investment properties, vacation homes, or land.
• Retirement Accounts: This includes 401(k)s, IRAs, pensions, and other retirement savings plans. The portion accumulated during the marriage is generally considered marital property. Dividing certain types of retirement accounts often requires a special court order called a Qualified Domestic Relations Order (QDRO) to avoid tax penalties.
• Bank Accounts: Checking accounts, savings accounts, and money market accounts.
  Investments: Stocks, bonds, mutual funds, and other investment vehicles.
• Business Interests: If one or both spouses own a business, the business itself (or a portion of it) may be a marital asset.
• Vehicles: Cars, trucks, motorcycles, boats, etc.
• Personal Property: This includes furniture, appliances, jewelry, artwork, collectibles, and other personal belongings.

Valuation Methods

Determining the value of assets is essential. Common valuation methods include:

• Real Estate Appraisals: A professional appraiser determines the fair market value of real estate.
• Business Valuations: A qualified business valuator (often a CPA or other financial expert) determines the value of a business interest.
• Account Statements: Bank statements, investment statements, and retirement account statements show the current value of those assets.
• Market Value: For some items (like vehicles), you can use resources like Kelley Blue Book to determine the fair market value.

Marital Debts

Marital debts are also divided fairly, though not necessarily equally, in the divorce. These debts can include mortgages, car loans, credit card balances, medical bills, and other liabilities that were incurred during the marriage. The division of these debts is often subject to negotiation and can be influenced by factors such as each spouse’s income, earning capacity, and the nature of the debts.

When determining the division of marital debts, consider the following:

• Type of debt: Some debts, like mortgages or car loans, are tied to specific assets, while others, like credit card debt, may be shared more broadly.
• Income and earning capacity: The ability of each spouse to repay the debt can influence how it is divided.
• Responsibility for incurring the debt: If one spouse was primarily responsible for incurring a particular debt, this might affect its division.
• Nature of the debt: Certain debts, such as those related to education or business, may be treated differently based on their purpose and benefit to the marriage.

Complex Property Division: When the Lines Blur

Things aren’t always as simple as “acquired during the marriage = marital” and “acquired before the marriage = non-marital.” There are situations where the distinction gets complicated, and this is where having experienced legal counsel is particularly important.

Commingling and Transmutation

• Commingling: This happens when non-marital property is mixed with marital property. For example, if you inherit money (non-marital) and deposit it into a joint bank account that you and your spouse use for everyday expenses, those funds might become commingled and lose their non-marital character.
• Transmutation: This occurs when non-marital property is transformed into marital property through the actions of the parties. A common example is when a spouse owns a home before the marriage (non-marital), but after the marriage, they transfer the title to joint names (even if only one spouse is on the mortgage). This could be interpreted as an intention to make the house marital property.

Another example, if one spouse inherits funds, this would be non-marital; however, if they contribute that inheritance to marital expenses, such as for repairs on the marital residence, this would be considered commingling.

These situations can create complex legal arguments about whether property should be classified as marital or non-marital.

Retirement Accounts

Even if you started a retirement account before the marriage, the portion that accumulated during the marriage is generally considered marital property. Determining the marital portion often requires careful analysis of account statements and contributions. As we’ve talked about, a QDRO is required to divide certain types of retirement accounts without tax consequences.

Business Interests

Dividing a business interest in a divorce can be extremely complex. You need to determine:

• Is the business (or a portion of it) marital property? Did it start during the marriage? Did both spouses contribute to it?
• What is the business worth? This often requires a professional business valuation, which can involve different methods (asset approach, market approach, income approach).
• Is there “goodwill”? Business goodwill (the value of the business’s reputation and customer relationships) is often not divisible in Illinois, but the value of the business’s tangible assets and income stream is.

Other Complex Assets

Other assets can also present unique challenges:

• Stock Options: Valuing and dividing unvested stock options can be complicated.
• Multiple Real Estate Holdings: Dividing multiple properties, including investment properties and vacation homes, can involve complex negotiations and appraisals.
• Cryptocurrency and Digital Assets: These relatively new asset classes can be difficult to identify, value, and trace.
• International Assets: If assets are located in other countries, jurisdictional and enforcement issues can arise.
• Hidden Assets: If there are hidden assets, a forensic accountant may be needed.

Factors the Court Considers in Dividing Property

There are numerous factors the court must consider when dividing property. These include:

• Contributions of Each Spouse: This includes financial contributions, as well as contributions as a homemaker or caregiver.
• Dissipation of Assets: If one spouse wastes marital assets, the other spouse may receive a larger share of the remaining property.
• Value of Property Assigned: The court considers the overall value of the property each spouse receives.
• Duration of the Marriage: The length of the marriage can be a factor.
• Economic Circumstances: The court considers each spouse’s financial situation after the divorce.
• Prior Obligations: Any obligations from a prior marriage (e.g., child support or spousal maintenance) are considered.
• Prenuptial/Postnuptial Agreements: Valid agreements are generally enforced.
• Age, Health, and Employability: These factors affect each spouse’s ability to support themselves.
• Custodial Provisions for Children: The needs of the children are a consideration.
• Maintenance: Whether one spouse is receiving spousal maintenance can affect the property division.
• Future Earning Potential: The court considers each spouse’s opportunity to acquire assets and income in the future.
• Tax Consequences: The tax implications of the property division are considered.

It is important to note that marital misconduct (e.g., adultery) is generally NOT a factor in property division in Illinois unless it involves the dissipation of assets.

Dissipation of Assets

Dissipation is the wasting of marital assets. Examples include:

• Spending marital funds on an extramarital affair.
• Gambling away marital assets.
• Making reckless investments or business decisions that significantly deplete marital assets.
• Transferring assets to a friend or family member to hide them from the other spouse.

If dissipation is proven, the court can award the “innocent” spouse a larger share of the remaining marital property to compensate for the wasted assets. There is a strict timeline to follow when making a claim for dissipation.

How Property Division Works: From Negotiation to Court

The property division process typically involves the following steps:

• Financial Disclosure: Both spouses must fully disclose their income, assets, and debts. This is often done through a financial affidavit.
• Discovery: The parties can use discovery tools (interrogatories, requests for production, depositions) to gather information about each other’s finances.
• Negotiation: The attorneys for both spouses will attempt to negotiate a marital settlement agreement (MSA) that resolves all issues, including property division.
• Mediation: A neutral mediator can help the spouses reach an agreement.
• Trial: If settlement isn’t possible, the case will go to trial, and a judge will decide how to divide the property.

Experienced and Strategic Legal Guidance for the Property Division

At Pucher & Ranucci, we have nearly two decades of experience helping clients in Orland Park and the surrounding communities navigate the complexities of property division. We understand the financial and emotional stakes involved, and we’re committed to providing strategic, client-focused representation.

We take the time to listen to your concerns, thoroughly analyze your financial situation, and develop a customized strategy to achieve the best possible outcome. We are skilled negotiators, and we strive for fair settlements, but we are also prepared to vigorously litigate your case in court if necessary.

Contact Pucher & Ranucci today for a complimentary consultation to discuss your property division concerns and learn how we can help.

We represent clients in Orland Park, Tinley Park, Joliet, Oak Forest, Alsip, Palos Heights, Homer Glen, Mokena, Will County, Cook County, and the surrounding Chicagoland areas.