Equitable Doesn’t Mean 50/50

A Primer on How Property is Divided in an Illinois Divorce Case

If you follow the tabloids and Hollywood divorces, you might mistakenly believe that property is automatically divided 50/50 in a divorce.  While that is true in community property states like California, it is not true in Illinois.  Illinois is an equitable distribution state, which means marital property is divided in “just proportions,” not necessarily 50/50.   In deciding what are just proportions, the court considers a myriad of factors, including, but not limited to, each spouse’s contribution to the marital estate, homemaking contributions, waste of property, length of marriage, debt obligations, age and health, custodial provisions for children, and tax consequences.  In short, there is not much that the divorce court is not required to consider in dividing property in just proportions.  Significantly, the division of property does not turn simply on which party made the greatest financial contributions to the marriage.  Non-financial contributions, such as homemaking and child rearing activities, are equally important, especially in long-term marriages.

In my experience, most judges faced with the task of dividing the marital estate start with an internal mind set of “why shouldn’t this be a 50/50 division?” and then allow the lawyers to argue why their respective clients should get a disproportionate division.  In Illinois, some reported cases affirm as equitable 90/10 division of property in favor of one spouse; on rare occasions even a 100/0 division is found to be just.  Property division is a fact-specific determination, but the vast majority of the cases reflect a division within the 50/50 to 60/40 range.

In negotiating the division of property, it is as important to ensure that assets and liabilities are fairly valued as it is to negotiate a fair percentage of the marital pot.  A 50/50 division on paper by which one  party receives assets that are either under or overvalued is not really a 50/50 division.

The valuation of assets such as bank accounts, brokerage accounts, cash value of life insurance is relatively straight forward. However, when real estate, closely held businesses, or partnership interests are at issue, appraisals and valuation reports from experts are often crucial.  Based on these reports and opinions, the parties either negotiate fair market value or leave it to the court to decide the value of the assets and their appropriate division.

The value of property is required to be measured at or as close to the end of the case as possible.  Particularly in today’s economic climate, the valuation of assets and liabilities is a moving target.  It is not unusual for parties to obtain updated valuations while the case is pending.  It is also not unusual for a spouse to obtain new property during the divorce case.  Such acquisitions must also be valued and could have the effect of delaying the case.

An attorney knowledgeable about property valuation and division cases is of great value to the client.  Clients faced with large or complicated property division cases should investigate the experience of the attorney before the attorney is retained, remembering that an accurate valuation of assets is often as important as the percentage division.

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