Divorce is a complex and emotionally charged process that often involves the division of assets acquired during the marriage. One common misconception we hear often is that everything is automatically split right down the middle, with each party receiving an equal 50% of the assets acquired during marriage. Is everything split 50/50 in a divorce? In reality, the division of assets in a divorce is a nuanced and intricate process that takes various factors into account. Because asset division is so difficult, courts have made policy decisions that help judges make decisions based on various factors. Keep reading to learn how assets are split during divorce.
The Reality of Asset Division
While the concept of a 50/50 split may seem straightforward, family law recognizes that not all marriages are created equal, and circumstances vary widely. Several key factors influence how assets are divided in a divorce. These factors are as follows:
1. Community Property vs. Equitable Distribution:
Different states and jurisdictions follow different legal principles for asset division. Some states adhere to community property laws, where assets acquired during the marriage are generally split 50/50. Others follow equitable distribution, which seeks a fair, though not necessarily equal, division based on various factors. Both principles have their benefits for different situations.
Community property states believe that the contributions of a stay at home parent are just as important as the contribution of the “bread winner” in the relationship. Just because one spouse makes less money does not mean they contribute less and the courts will award that.
Equitable distribution states believe that the distribution of assets should be fair, but not necessarily equal. In these states, judges will take into consideration the income of both spouses, spousal support payments, child support payments, future earning potential of each spouse, and the assets acquired before and during the marriage. If one spouse is a stay at home parent, then the courts will likely award them more than is received by the working spouse to ensure the stay at home parent is not left destitute after the divorce without the ability to support themself.
Illinois is an equitable distribution state. If you want to read the full statute you can find it at 750 ILCS 5/503.
2. Individual Financial Contributions:
Courts often consider each spouse’s financial contributions to the marriage. This includes income, property brought into the marriage, and financial sacrifices made for the benefit of the family. Courts will also determine what is marital property and what is not. Marital preoprty would be property acquired during the marriage that is owned by both parties. This could be a car, house, or joint bank account. Anything that is considered marital property will be divided, while anything deemed to be non-marital property, like separate bank accounts, will not be divided.
To prevent assets from becoming marital property, you must avoid comingling. Comingling happens when couples share a joint bank account or jointly purchase assets. Other assets considered non-marital property would be inheritances or retirement funds as long as that property was not comingled as well.
For more information on protecting assets during divorce, check out “How to Protect Your Assets During Divorce in Illinois.”
3. Pre/Postnuptial Agreements:
Many couples look for ways to protect their assets during divorce. One of the best ways to do this is to create a pre/postnuptial agreement. These agreements are drafted either before or after marriage. Both agreements outline how assets are to be divided in the case of divorce and define which assets are considered to be marital and non-marital assets.
Pre and postnuptial agreements can also determine issues like spousal support, so both parties can agree to these terms before divorce ever becomes an issue. Spouses are more likely to agree to support before or right after the marriage than they are after filing for divorce. Prenuptial and postnuptial agreements cannot, however, deal with issues of custody or child support as those matters are left to the courts to ensure the best interests of the children are met given any circumstance.
For more information on pre and postnuptial agreements, check out “Why Is A Prenuptial Agreement A Good Idea.”
4. Duration of the Marriage:
The length of the marriage can impact the division of assets. Longer marriages may involve a more extensive comingling of finances and shared responsibilities which can influence how assets are distributed. Especially if one spouse doesn’t have a traditional job, courts will still take into account what that spouse has contributed to the marriage over however many years.
5. Custody Arrangements:
If children are involved, custody arrangements can also affect how assets are divided. The primary caregiver may be awarded the family home or other assets to ensure stability for the children. Non-custodial parents are typically forced to pay child support to allow the children to live a similar standard to how they did before the divorce. These payments will increase depending on the age of the child, the number of children, and any needs the child might have like medical treatment, educational needs, or extracurriculars. Because custody arrangements have such varying effects on divorce, we recommend checking out “Why Do I Pay Child Support With 50/50 Custody in Illinois?”
6. Spousal Support (Alimony):
The need for spousal support can influence asset division. If one spouse earns considerably more than the other, the lower earning spouse may receive a more substantial share of the assets to compensate for disparities in their earning capacities or financial resources. If spousal support is deemed unnecessary for any reason, or if both partners make an equivalent amount in income, then both spouses may receive closer to a 50/50 split than they would have otherwise. Keep in mind that all of these factors will be taken into consideration before an agreement is reached.
If you want to know what a non-working spouse is entitled to during divorce, check out what is a “What Is a Non-Working Spouse Entitled to in a Divorce?”
7. Mediation:
Mediation is an alternative method of divorce. It involves a neutral third-party mediator that works with both sides to reach a custom settlement agreement. Mediation is cooperative and requires collaborative efforts from both sides if they wish to reach an agreeable solution. Because mediation is collaborative, it allows both sides to create an agreement tailored to their specific circumstances. This gives more control to both parties over the issues in the case.
Parties can agree to terms regarding spousal support, asset division, child custody, and child support. Agreements reached through mediation can then be brought to the court for enforcement if the other party breaches any terms listed in the agreement.
8. At-Fault vs No-Fault
There are also states that take into account fault when creating divorce agreements. At-fault states will assign blame to one spouse, and possibly take away alimony or parenting time, if that spouse was unfaithful, abusive, or neglectful. At-fault states will also allow you to divorce without assigning blame just like no-fault states. The only requirement for getting a divorce in a no-fault state is that one spouse claims there are “irreconcilable differences” between the spouses. Illinois is a no-fault divorce state.
While no-fault divorces are easier, since they do not deal with assigning blame and proving fault, all factors must be taken into account when determining what assets will be split. Proving your spouse was at-fault can be difficult, but if you can prove fault, then you may be able to protect more of your assets.
Conclusion: Is Everything Split 50/50 in a Divorce?
In the realm of family law, the idea of a simple 50/50 asset split is a myth. The reality is that asset division is a complex process that takes into account a multitude of relevant factors. Whether your jurisdiction follows community property laws or practices equitable distribution, the goal is to achieve a fair and just resolution based on the unique circumstances of each case that also keeps in mind the best interests of any children involved.
If you’re facing a divorce, it’s crucial to seek legal advice tailored to your specific situation. A qualified family law attorney, like those at KGN Law Firm in Bloomington IL, can help you navigate the complexities of asset division, ensuring your rights and interests are protected throughout the process.
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The Family Law attorneys at Koth Gregory & Nieminski understand that your family is the top priority, which is why we offer SAME-DAY APPOINTMENTS. If you need a divorce or other family law services, you can schedule your first meeting through our online appointment calendar. We look forward to meeting you.
Disclaimer: This article (Is Everything Split 50/50 in a Divorce?) may contain information that is outdated as Illinois law continuously evolves. Meeting with an experienced family law attorney is the best way to ensure you are receiving the most current information answering the question Is Everything Split 50/50 in a Divorce?
Published by Dustin Koth on January 16, 2025
