Asset Division

Every divorce is unique. Some divorces are finalized fairly quickly while others take years to complete. When a couple has children, child custody and child support are important issues to determine for their divorce settlement, and in some cases, spousal maintenance is also part of the equation. However, sometimes, none of these are part of a couple’s divorce. Rather, all the couple needs to do is divide their property.

In every divorce, the couple’s marital assets and debts must be divided between them. This is as true for couples who have extensive marital estates as it is for a couple whose only asset is a savings account with a few hundred dollars in it. A couple can use a prenuptial agreement to decide ahead of time how their assets are to be divided in the event of a divorce or, if they agree on how to divide them after filing for divorce, they can create their own asset division plan and submit it to the court. When neither of these is the case, the court divides the couple’s assets for them.

Non-marital, Marital, and Commingled Assets

When an Illinois couple gets divorced, their marital assets are subject to equitable distribution. Marital assets are the assets the couple obtained and developed during their marriage. They can include the couple’s home and any other real estate they own, their joint savings accounts, their investment portfolios, and any tangible assets they own together like vehicles and collectibles.

Non-marital Property is property that stays with its individual owner after he or she divorces. This includes assets each party owned before entering the marriage, assets obtained through inheritance or as gifts, and any assets deemed separate property by a prenuptial agreement.

Commingled assets are non-marital assets that may become marital assets, such as a home one partner owned before entering the marriage that rose in value through the other partner’s contributions. These are subject to court division. When dividing a commingled asset, the court often does its best to determine the difference between the asset’s present value and its value when its owner entered the marriage in order to divide only the “marital” portion of its value.

How the Court Divides Marital Assets

Equitable distribution means that the couple’s marital assets are not split 50/50, but according to what the court determines to be appropriate based on their individual needs after the divorce. To determine an appropriate breakdown of a couple’s marital estate, the court considers a variety of factors. These factors include

  • The length of the couple’s marriage;
  • Each partner’s age and health;
  • Each partner’s income and separate assets;
  • Each partner’s earning capacity;
  • Whether either partner is receiving spousal maintenance; and
  • If the couple has a prenuptial agreement, the terms of the prenuptial agreement.


Certain assets, namely retirement accounts like 401k accounts and pension plans, must be divided through a qualified domestic relations order (QDRO). A QDRO is a special order that names an individual other than the one named on the retirement account as a person entitled to a portion of the funds, also known as an alternate payee. Usually this means the spouse who was not named on the retirement account is named as an alternate payee and receives a share of the funds contained within the account.

Contact The Law Office of Gina L. Colaluca, LLC Today

When you know your marriage is over, discuss the divorce process with an experienced divorce lawyer. To get started with our firm, contact The Law Office of Gina L. Colaluca, LLC today to set up your initial consultation in our office. When you work with us, expect hands-on attention to detail and strong, staunch protection of your rights.