One of the first questions that clients ask us is “how are assets divided in a divorce in Illinois?” Section 5/503 of the Illinois Marriage and Dissolution of Marriage Act (the “Illinois Divorce Act”) governs the distribution of property. Illinois is a “No Fault” divorce state, which means marital misconduct (such as adultery or other misconduct), is not factored into the equitable division of marital property.
Under the Illinois Divorce Act, the Court is to assign to each spouse that spouse’s Non-Marital Property, and to “equitably” or “justly” divide the property and debt which comprises the Marital Estate.
The terms “equitably” and “justly” do not mean that marital property is to be divided on an equal basis. In most long-term marriages, the division of property often favors the spouse with less income potential and fewer career opportunities. Thus in a marriage that has lasted for 25 years, if one spouse has been a stay-at-home parent with limited earning potential while the other spouse earned significant income, the stay-at-home parent with the limited earning potential is likely to be awarded more than the high-income spouse.
The Court must also consider statutory factors in determining the equitable distribution of the Marital Estate. These factors include: any valid prenuptial agreement; the duration of the marriage; the age, health, income, and needs of each of the spouses; the value of the property to be distributed to each spouse; whether maintenance is being awarded; the relevant economic circumstances of each spouse (including the award of the family home to the custodial parent); the obligations and rights arising from prior marriages; the custodial provisions for any children; the contribution or dissipation of marital and non-marital property by either spouse; and other relevant factors. In short, the Court has considerable discretion in considering many factors in dividing the marital estate.
Illinois is a No Fault divorce state; thus acts of adultery do not directly factor into the division of the Marital Estate. Dissipation of marital assets in the course of an affair, however, is a statutory factor for the Court to consider.
Dissipation is generally defined as the use of marital funds by one spouse solely for their own benefit, and for a purpose unrelated to the marriage. Dissipation can come in different forms, such as spending marital money on illegal activities or using marital funds to carry on an extramarital affair. Marital funds spent for necessary living expenses generally do not constitute dissipation.
So, in an indirect way, the costs related to adulterous, extramarital relationships can be considered by the Court in dividing up the marital estate such that the spouse spending marital assets on an extramarital affair may receive a reduced award of assets based upon the amounts of money spent in furtherance of an affair. Once a claim of dissipation is made, the spouse against whom the claim is made must prove by clear and convincing evidence how the marital funds were spent.
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