Skip to content

The division of property in a divorce

In several states, property division is based on community property rules. Under this principle, property obtained during the marriage is deemed to be owned jointly by the spouses, and thus during a divorce, these assets will be divided equally between the two parties unless they otherwise agree. While Illinois is not a community property state, Illinois couples who are considering moving to a community property state such as California may want to take this into account should their marriage come to an end.

A business that is owned by one spouse living in a community property state is generally considered community property, which means that the owner may have to pay the other spouse half of its current valuation. However, this may be avoided by getting a spousal exclusion as part of a postnuptial agreement. These work similar to prenuptial agreements except they are agreed to after the couple has gotten married.

If a couple has a valid prenuptial agreement, it will generally be followed by the court. It should also be noted that if a couple comes to their own agreement during settlement talks, a judge is likely to approve of that agreement. As long as good records are kept, property that was held by one party prior to the marriage is generally not eligible to be divided in a divorce.

Anyone who is going through a high asset divorce may wish to talk to an attorney regarding property division. While state law may determine how assets are valued and divided, settlement talks may allow for a deal to be reached and submitted to the court for its approval. This may make it easier for all parties to preserve relationships between themselves and any children that they may have. It may also lead to a resolution in a more timely fashion.