IS ILLINOIS A COMMUNITY PROPERTY STATE?

There are two legal theories that govern how marital property is divided in divorce: community property and equitable distribution. Illinois is a non-community property state or an equitable distribution state. Property owned by divorcing spouses is categorized into (1) separate property or (2) marital property. Separate property is generally property that was owned before marriage or was acquired during marriage by inheritance or separate gift. Marital property is property that was acquired during the marriage and not by inheritance or separate gift.

Property Division. Each party gets to keep his/her separate property. In a non-community property state like Illinois, the marital property is divided in divorce via a process known as equitable distribution using the factors set forth in the Illinois statute (750 ILCS 5/503(d)). The factors include, but are not limited to, the age of each spouse, financial need, contribution to the marriage, future earning ability, but do not include marital fault.

Community property states. There are 9 community property states (Arizona, California, Idaho, Nevada, New Mexico, Texas, Washington, Wisconsin, and Louisiana). Community property law is different in that there is no process of equitable distribution. In a community property state such as California, community property is divided 50/50 between the divorcing parties – there is no process of “equitable distribution.” Issues of financial need, future earning ability, and marital fault are not considered. The concepts of separate property and marital property (called community property) still exist in a community property state – it’s the division of the community property that differs from a non-community property state.