Breaking up a marriage involves more than just you and your spouse going your separate ways, it also entails the complex process of dividing your marital property. One of the biggest questions you may have is what you are going to end up with after the split. The answer depends on which approach you take to distributing community assets. There are three common ways you may go about it:
1. Prenuptial or postnuptial agreement
If you signed an agreement before (prenuptial) or after (postnuptial) your marriage, then it is likely that the court will follow the terms you already made regarding property division. However, certain circumstances can invalidate the agreement, such as:
- Coercing signature of the agreement
- Not fully disclosing all assets
- Including unenforceable provisions
- Lacking separate legal representation at the time of creation
If you suspect your prenup or postnup to be illegal in any way, then you will have to prove it to the court to have the judge throw out the agreement.
When there is no prior agreement, you two can come up with one through mediation. The process has you and your spouse work with a neutral third-party who facilitates communication and cooperation to raise the chances of success. After your separate attorneys review the final document, you submit it to the court for approval. Using mediation saves you a lot of time and money and gives you more control over your financial future. It also reduces contention, which is not only good for your physical and emotional health, but also your children's.
3. Equitable distribution
Sometimes mediation is not an option because your spouse may be untrustworthy or hateful. In this case, state property division laws will determine who gets what. Illinois follows equitable distribution, meaning that you do not get exactly half of all assets. Instead, the judge will determine the fair amount you each should receive based on your circumstances.