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What constitutes a “fair and equitable” property settlement?

As you begin your Illinois divorce process, one of the most important things you and your spouse must do is to arrive at a fair and equitable property settlement agreement. However, what may be fair and equitable in one couple’s divorce may not be so in your divorce. In other words, while guidelines exist, “fair and equitable” is unique to your own situation.

As reported by the Huffington Post, your fair and equitable property division does not necessarily mean that you and your spouse must divide your marital property on a straight 50/50 basis. Rather, many considerations come into play, such as how liquid an asset is, its cost basis and any tax implications with regard to its sale.

Marital versus nonmarital property

You should keep in mind that you and your spouse need not divide all your property between you, but only those things that constitute marital property. These things include all the assets you and your spouse accumulated during your marriage. Your separate property, however, belongs to you and you alone and includes such things as the following:

  • Any assets you owned prior to your marriage
  • Any inheritances you received during your marriage
  • Any gifts you received during your marriage
  • Any settlement or jury award you received in a personal injury or other lawsuit

Also keep in mind, however, that your separate property can become marital property under certain circumstances. For instance, if you owned a piece of real property prior to your marriage, but your spouse helped you make the mortgage and/or tax payments during your marriage, a court may well consider the property’s increase in value since your marriage to be a marital asset.

Fair and equitable considerations

A court may consider any and all relevant factors when determining if your property settlement agreement is a fair and equitable one. Nevertheless, some of the most common factors include the following:

  • Your age and health and that of your spouse
  • Your income and earning potential and that of your spouse
  • The standard of living you and your spouse achieved during your marriage
  • Whether and to what extent either of you contributed to the other’s education, training or career potential
  • The length of your marriage

While this educational information is not legal advice, it can help you understand the factors inherent in a fair and equitable property settlement agreement.

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