Dividing marital property is one of the challenges for any couple going through a divorce. Simply identifying marital property can prove to be an arduous process, due to the complexities of the law in Illinois and the way in which many married couples maintain their household finances. A large number of couples may find themselves dealing with commingled property, without even realizing how they got to that point.

The Basics

Illinois law provides that any property acquired by either spouse during the marriage is considered part of the marital estate, except property that was acquired through gift, legacy, or descent. The law also creates exceptions for assets received in exchange for (e.g. proceeds from selling) non-marital property, whether the original property was a gift, inheritance, or acquired before the marriage. While the law attempts to be fairly straightforward, the realities of many marriages make things considerably more complicated.

What’s Mine Is Yours

Not every couple will do so, but many, if not most, people enter a marriage with the expectation of completely sharing a life together. They are not considering the possibility of the marriage ending at some point, and, thus, are perfectly willing to combine assets and property. This usually includes property that was owned prior to the marriage, which according to the laws governing divorce would be non-marital property.

There are almost countless reasons why a married couple gets divorced. Sometimes, both spouses agree that it is time to end the marriage while other times only one spouse wants the divorce. Traditionally, married couples who wanted a divorce had to give a reason, or “grounds,” for why they wanted to end their marriage. However, major updates to the Illinois Marriage and Dissolution of Marriage Act (IMDMA) took effect in 2016 which significantly altered the need for proving any grounds for divorce in Illinois.

Divorcing Couples No Longer Need to Assign Fault for the Dissolution of Their Marriage

In the past, Illinois had specific reasons that a married couple could dissolve their marriage. These reasons included the assignment of blame or “fault” to a spouse. Grounds for divorce in Illinois prior to 2016 included:

• Adultery;
• Impotence;
• Bigamy;
• Abandonment;
• Drug or alcohol abuse;
• Physical or mental cruelty;
• Attempted murder of a spouse by the other;
• Spouse was convicted of a felony crime; and
• Spouse infected the other with a sexually transmitted disease.

Since the mid-1980s, however, couples were not forced to choose one of these grounds for divorce in Illinois. A married couple could get divorced even if no major breech in trust or other dramatic wrongdoing occurred, but doing so was often difficult and time-consuming.

Understandably, divorcing couples rarely see eye-to-eye on every subject. They may agree about who should have the majority of parental responsibility but disagree about whether or not to sell the house. Alternatively, they may agree on issues of property division and spousal support but disagree on how they will share custody of their children. Some couples disagree about nearly every aspect of their divorce. When divorcing spouses need help coming to an agreement about divorce issues, mediation can be a valuable tool. Through family mediation, divorcing spouses have a chance to make their thoughts and concerns heard while working toward a solution on divorce issues. Read on to learn about the mediation process in Illinois and how you may benefit from mediation.

Identifying Divorce Issues and Deciding on Mediation Objectives

While every mediator is different, the mediation process generally begins with the mediator organizing a joint meeting with both spouses and explains his or her role in the mediation process, goes over the general procedures for mediation, and reminds the parties that what is said during mediation is confidential. The spouses will then have an opportunity to voice their concerns related to the divorce and discuss their goals for mediation. The mediator will help facilitate a productive discussion between the spouses in order to identify potential solutions.

Working to Find Solutions Both Spouses Agree To

A mediator may meet with the spouses separately after the initial joint meeting. During this individual meeting, the mediator can clarify each spouse’s concerns and hear their proposed solutions to these issues. After this, a series of cooperative joint discussions and individual meetings will take place during which the spouses will work to find resolutions to their divorce issues which both parties can agree to. These meetings will continue until the issues are adequately resolved or until the mediator and spouses decide that mediation is not producing the desired results. If the spouses are able to reach an agreement on divorce issues, the mediator will provide a Memorandum of Understanding describing the agreements the spouses have come to and identifying any issues which remain unresolved. The mediator will file a report with the court and the spouses’ attorneys will then prepare a final settlement agreement based on the information included in the mediator’s Memorandum of Understanding.