For many people, filing for divorce is a source of great anxiety. After all, ending a marriage isn't a decision to be taken lightly. There can be unpredictable consequences to a divorce, especially in situations where you and your spouse simply cannot agree on terms for your divorce.
Some couples have the benefit of a prenuptial agreement to guide the divorce process. This document can outline the expectations for the division of assets, as well as how the couple may handle issues such as child custody and spousal support. In lieu of a prenuptial agreement, however, you should know what to expect if the courts will set the terms for your divorce.
Illinois courts seek equitable distribution of assets
The greater the overall assets from your marriage, the more likely it is that you and your spouse won't agree on how to divide them. If that is true in your case, you can expect the courts to make those critical decisions on your behalf. While every divorce is inherently unique, making it impossible to completely predict the outcome of asset division, understanding the state law can help you know what to expect.
Illinois is an equitable distribution state, which means that the courts determine what is fair. Typically, separate property, such as assets owned prior to marriage, gifts and inherited assets, is not subject to division. Marital property, on the other hand, which includes essentially all assets accrued during the marriage which are not separate property, is subject to division.
Generally, the courts will not consider marital misconduct when dividing assets. Instead, they will look at how much each spouse contributed to the marital property, both through income and unpaid work in the home, any dissipation of marital assets by either spouse, how long the marriage lasted, the current income and potential future income of each spouse, child custody arrangements, whether or not a spouse requests spousal support, and the potential tax implications of the divorce, among others.
In most cases, shared custody is the preferred outcome
When the courts must make a decision regarding child custody, they always consider the best interests of the children. In most families, the best interests of the children include minimizing the disruption caused by the divorce and ensuring a positive, ongoing relationship with both parents.
Shared custody is an ideal way to protect the parent-child relationship after divorce. In fact, 50/50 custody, including alternating weeks or days, including weeknights, are increasingly common. In situations where one spouse is unable to care for the children or where there is a documented history of spousal or child abuse, there is potential for one parent to receive primary or full custody of the children.