Can I Get More Marital Property Instead of Maintenance in My Divorce?
If you are facing the possibility of a divorce, you and your spouse will need to address a number of important considerations along the way. For example, one or both of you will likely need to find someplace to live. If the two of you have children together, a parenting plan will need to be developed that includes arrangements for the allocation of parental responsibilities and each parent’s parenting time. Simply adjusting to everyday life as a single person is likely to present challenges in and of itself. However, many of the most difficult concerns in any divorce tend to focus on a couple’s finances, including how their marital property will be split and whether either spouse should expect spousal support payments.
Property Division and Maintenance Considerations
The Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5) provides that decisions about money and property in an Illinois divorce are to be made based on the circumstances of each unique case. If you and your soon-to-be ex-spouse cannot come to a settlement agreement, it will be up to the court to identify and divide the marital estate, as well as to decide if there is a need for spousal support – known in the law as “maintenance.” In making these decisions, a family court judge is required by law to consider a variety of factors related to each. Such factors include:
- Each spouse’s income, earning capacity, and available resources
- The role each spouse played during the marriage, how that role affected the value of the marital property, and its effect on the earning ability of the other spouse
- How long the marriage lasted and the standard of living established in the marriage
- How maintenance and allocated property will affect each spouse’s tax obligations
- How parenting responsibilities are being divided
- Any valid agreements between the spouses, including prenuptial and postnuptial agreements
Putting the Pieces Together
Illinois law also directs a presiding judge to take into account the overall financial situation present during the marriage, as well as in the pending divorce. It is important to recognize that the asset division process and spousal support determinations are not independent considerations. In fact, the law specifies that each might affect the other. For example, if you have asked for spousal support in your divorce, and the court is deciding on how to divide your marital estate, the judge is statutorily obligated to consider whether property should be given to you “in lieu of or in addition to maintenance.”
Basically, this means that the judge can give you a larger or smaller share of your marital property, depending on whether or not you will be getting spousal support as well. This can be especially helpful in contentious cases, as the court has the power to simplify interactions between you and your spouse in the future by giving you additional property immediately rather than ordering ongoing support payments. However, the opposite is also possible, and the court could reduce your portion of the marital estate now but order your spouse to make spousal maintenance payments to help you meet your financial needs over time.
A Rolling Meadows Divorce Attorney Can Help
If you have additional questions about receiving additional marital property in place of support, our experienced Hoffman Estates family lawyer can help you find the answers. At The Law Office of Nicholas W. Richardson, we know that the divorce process can be overwhelming, but we are here to help you get through it. Contact our firm to discuss your case and to get the information you need to make informed decisions from the very beginning. Call us at 847-873-6741 for your free consultation today.