Equitable Division of Marital Property in Illinois


A couple can acquire a lot of things––from a marital home to investments to bank accounts––while married. When they decide to divorce, all of that must be divided. It can become a pretty heated part of a divorce, especially when the assets (and debts) are extensive.

At The Law Firm of Erin N Birt PC (Birt Law), we understand what you are going through and take steps to make the process as smooth as possible. We will help you divide the property in accordance with the law. We will also help identify any assets that the other partner may have tried to hide or negotiate property that is particularly contentious. Contact us online or call us at (630) 891-2478 to schedule a consultation & planning session.

What is the Equitable Division of Marital Property in DuPage County?

The term “Division of Marital Property” refers to the process of deciding who gets what possessions when a married couple divorces. Different states have different ways of viewing how marital property should be divided. There are two schools of thought. Communal property is one way where states that adhere to that doctrine divide marital property evenly––a 50/50 split.

Illinois, however, is an equitable distribution state. Equitable distribution, on the other hand, is an approach that does not necessarily stick to the 50/50 rule when deciding who gets what. Instead, the court tries to find a solution that is fair to both parties, in other words: equitable. At times, this may mean taking into consideration property that is owned separately by just one spouse when deciding the best way to divvy up belongings. 

It is important to know which of these property rules your state recognizes.

What Is Included as Marital Property in Illinois?

Marital property is property that has been accumulated by the couple during the life of their marriage. Items that may be considered as marital property include:

  • Home
  • Motor Vehicles
  • Jewelry
  • Furniture and household items
  • Retirement accounts
  • Bank accounts
  • Financial assets

If one spouse owns property separate from the other, that may not be considered marital property. An example would be an inheritance (in most states). 


Debt is another matter which must be considered when couples divorce. In most communal states, debt incurred after the couple is married but before the couple separates is considered to be the debt of both parties, even if it is only in the name of one. 

In most equitable states, incurred debt during the life of the marriage is the responsibility of both parties. Each spouse, however, may also have debt that is separate and belongs only to them.

What Are Common Challenges to the Equitable Division of Property?

Spouses in both equitable property and communal property states can challenge the court's division of property. Two common reasons for challenges are:

  1. Hiding Assets. One spouse may claim that the other is hiding assets that should be included as marital property and used to determine each party's fair share. One way this may be done is by asking that certain bonuses or work promotions not occur until after the divorce is final. 
  2. Classification of Debt/Assets. It is not uncommon for one party to claim that the court is incorrectly classifying debt or assets as marital or separate property.

The courts hold that it is important both parties were transparent in what they own for a premarital agreement to be upheld.

How Does a Divorce Lawyer Help in the Equitable Division of Property in DuPage County?

A family law attorney can be very helpful when determining the equitable division of property. First of all, they tend to know how to negotiate and determine what is equitable. Sometimes, that could be a 60/40 split and other times, it could be a 50/50 split. Further, there are circumstances that could be leveraged to gain a better portion of the marital property. For example, if a spouse had an affair and wasted marital property on that affair, your attorney can successfully argue that your portion of the property reflects a reimbursement of that waste. 

A divorce lawyer will also know how to look for your soon-to-be ex's hidden assets. Ultimately, they can help you negotiate so that you receive the settlement you are owed under the law. 

Contact a Family Law Attorney in Illinois Today

At The Law Firm of Erin N Birt PC (Birt Law) we want our clients going through a divorce to make informed decisions. We will be honest and straightforward about your options and persistent in making sure your rights and interests are upheld. Contact us today online or at (630) 891-2478 to schedule a consultation & planning session.


Recent Posts

Our Attorneys

  • Erin Birt

    Since 2003, Erin N. Birt, J.D., CADC has focused her practice on pa...

  • Tyler Birt

    Since 2007, Tyler Birt has been a legal assistant and bookkeeper fo...

  • Karen Hansel

    As Administrative Assistant at Birt Law, Karen’s involvement in dai...

Family Centered Divorce ∙ Mediation ∙ Co-Parenting

Birt Family Law is the family centered law and mediation practice with a focus on Restorative Divorce; offering creative and supportive legal and mediation solutions with one goal: keeping the separating family out of court and working together towards a positive resolution.

We offer multiple options to achieve this goal including mediation, coaching, co-parenting strategies, and Restorative Divorce services. 

Are we the right fit for you?

Birt Family Law is committed to keeping the separating family out of court and working together towards a positive resolution.