One of the functions of a divorce is to divide property between the spouses after their marriage has ended. A divorce order can divide land that people own and their possessions as well. Often attorneys will refer to these two types of property as real property and personal property. The court can also distribute responsibility for debts.
In Illinois, property is divided in two ways. First the court must determine whether property is marital property or nonmarital property. Marital property is a property that is acquired by either spouse or by both spouses during the course of the marriage. Property that was acquired before the marriage is the nonmarital property of the spouse who had it before the marriage.
The importance of the distinction between marital and nonmarital property is that nonmarital property is awarded to the party that owns it, and marital property can be awarded to either, depending on the facts of the case.
One myth, with regard to property owned by a married couple, is that the title will determine how the property is divided. For example, many people feel that if their name is on the title of a car purchased during the marriage, that they will automatically be awarded the car. This is not true. Whether title is held by one spouse or another, if the car was purchased during the marriage, there is a presumption in the law that the car is marital property, and subject to being awarded by the court.
When a judge decides how to divide property, he or she tries to reach a “just” division. This is frequently referred to as equitable distribution. Equitable does not necessarily mean that each spouse should get half or an equal amount of the property. Many cases reach a result of where one party gets more than half of the property and the other party gets less than half of the property.