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FAQ: Dividing property in an Illinois uncontested divorce

Do you wonder how to divide property in an uncontested divorce? If so, then you need to read these frequently asked questions about dividing assets, and debts. Getting a fast and quick divorce in Illinois is one step closer if you understand this stuff. But you can contact us here to get started now.

What if we don’t have any property together?

Some people think that they don’t share any property with their spouse so long as they don’t have jointly entitled things. For example, they think just because a bank account is titled to only one person that said account is that person’s individual property. But that’s not true. Let me explain to you how property works in a marriage, and divorce.

With few exceptions, it doesn’t matter whose name is on what. If something was acquired during a marriage, then it is marital property to be divided during a divorce. 

For example, suppose a couple got married on January 1st, 2019. Then from January 1st to June 1st, the wife makes money from a job and puts it into a checking account that is titled only in her name. Then on September 1st, she files for divorce. The money in that checking account that she earned from her job is marital money, what we divorced lawyers would call part of the marital estate, and it would be subject to division in divorce. It doesn’t matter if the husband also has an account only in his name, if the husband never access the wife’s account, or if the husband and the wife had an understanding during the marriage that they would each have their own accounts.

The same concept holds true for a car. Suppose people get married January 1st 2018. Then the husband buys a car on January 1st, 2020, and the car title is in his name only, as is the car loan. If the husband used funds he earned during the marriage to pay for that car and to pay the car loan, then that car is also marital property. It doesn’t matter if only his name is on it.

So long story short, even if you think you and your spouse don’t own anything together, you’re probably wrong.

Do we need to divide everything 50/50 in an Illinois divorce?

Many people think that Illinois divorce law states that property should be divided 50/50. But that’s just not the case. It’s a very common misconception.

In reality, the law states that the court must divide the property equitably, and in a way that is not unconscionable. Let’s look at those two concepts.

If a case is litigated, then the court will equitably divide property. What is equitable is defined by the judge. It basically means the judge is going to figure out what is fair. And that doesn’t necessarily mean property will be divided 50/50. for example, if one spouse earns $200,000 a year, and the other urns only $30,000 a year and has very bad job prospects, the spouse that earns less will probably get a greater share of the marital estate. For example, the lower earnings spouse might get 60% of the marital estate, while the higher earnings spouse gets 40% of the marital estate.

In an uncontested divorce in Illinois, it is up to the parties to determine what is equitable. But don’t come up with anything too crazy. 

That’s where the concept of unconscionability comes in.

Whatever people agree to, the judge must find that the agreement is not unconscionable. something is unconscionable if it offends society’s notion of what is fair. For example, if one spouse earns $4 million a year, and the other earns $30,000 a year, and the marital estate is worth $15 million, there’s going to be a significant amount of scrutiny into whether or not the agreement the parties have reached is not unconscionable.

If the lower earning spouse doesn’t get spousal maintenance, and only receives $100,000 from the marital estate, the judge will probably not be pleased with that agreement and will find it to be unconscionable. That means the judge will not let the divorce proceed on the terms of parties agreed to.

Long story short, while an uncontested divorce is one by agreement, the judge does not have to allow absolutely any agreement that comes across the bench.

Part of the role of an uncontested divorce lawyer is to help parties understand what would be acceptable to the court. Your agreement must not be unconscionable.

What if my spouse won’t agree how to divide the property?

How can I put this? An uncontested divorce is one by agreement. Therefore, you must have an agreement about how to divide all the property if you want an uncontested divorce. See this article about the basics of uncontested divorce in Illinois.

A lot of times when people are disagreeable they don’t understand what is involved in litigating a case. Litigating a case can be very expensive.

You cannot get an uncontested divorce in Illinois unless you and your spouse agree to always use. In terms of dividing property, You want to agree on the following topics if they apply to you:

  1. Who will receive which bank account?
  2. Who will receive which retirement account?
  3. Are we going to split up any of the retirement accounts?
  4. Are we going to share any part of a pension once it starts to pay out?
  5. Who gets the house?
  6. When will one of the people have to move out of the house?
  7. When will the house be sold?
  8. Who gets all the stuff, like furniture, electronics, household items?

What If we can’t figure out how to divide everything?

As an Illinois uncontested divorce lawyer, part of what I do is help people figure out how to divide things in a way that makes sense.

If you and your spouse can agree to most of it, I can help you get across the finish line. For example, if you agree that you should share all the property equally, I can help you decide who gets what. what you don’t have to do is divide every account down the middle. That’s cumbersome, and unnecessary. and you don’t necessarily have to sell real estate to divide up the money. For example, if one party is going to get real estate that has equity in it, the other party can get other assets to offset the equity in the house.

How do I get started dividing assets for an uncontested divorce?

Basically what you want to do is create an inventory of all your assets and debts. Then start dividing them and see how far you get. See if you and your spouse can reach some sort of agreement, but make it as specific as possible.