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Dividing property in an Illinois divorceDivorce and property division in Illinois

Wang Law Firm, LLC · David Wang, Managing Attorney · Attorney-reviewed · Updated October 2026

Start here: (1) Illinois is an “equitable distribution” state: marital property is divided in the proportions the court considers just, which is not necessarily 50/50. (2) Property acquired during the marriage is presumed to be marital; the spouse claiming it is separate must overcome the presumption by clear and convincing evidence. (3) Property in China or other countries must also be disclosed truthfully; concealment has serious consequences. (4) If a green card, naturalization or the I-864 is involved, read How divorce affects immigration status before you divorce. (5) Do not transfer, waste or hide marital property before or after a divorce.

Divorce is a major change both emotionally and financially. This page explains in plain language the basic rules and procedures for property issues in an Illinois divorce, to help you understand what you need to prepare and what issues you may face. Every family’s situation is different, and this page cannot replace legal advice on your specific circumstances.

Divorce in Illinois is governed by the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5), and its formal name is “dissolution of marriage.” If you are divorcing in New York or Massachusetts, the rules are different and must be analyzed separately under local law.

Basic requirements for divorce in Illinois

Residency: When the divorce is filed or the court makes the relevant findings, at least one spouse must have resided in Illinois (or been stationed there as a member of the armed services) for 90 days (750 ILCS 5/401(a)).
Grounds: Illinois has only one ground for divorce: irreconcilable differences have caused the irretrievable breakdown of the marriage, and efforts at reconciliation have failed or would be impracticable. There is no need to prove the other spouse was at fault.
The six-month separation presumption: If the spouses have lived separate and apart for a continuous period of not less than six months before judgment, there is an irrebuttable presumption that irreconcilable differences exist (750 ILCS 5/401(a-5)). Separation is not a prerequisite for divorce; it is only one way of proving the ground.
Marital misconduct does not affect property division: The court divides marital property without regard to marital misconduct (750 ILCS 5/503(d)); however, one spouse’s dissipation of marital property is a statutory factor, discussed below.

Step one: distinguishing marital from non-marital property

Under 750 ILCS 5/503(a), marital property is all property (including debts) acquired by either spouse after the marriage, except the following non-marital property:

Category of non-marital property	Examples
Property acquired before the marriage	A home bought before the marriage, savings held before the marriage (retirement plans and the like have special rules)
Property acquired by gift, legacy or descent, and property acquired in exchange for it	Money parents gave to one spouse personally, a home inherited by one spouse
Property acquired in exchange for premarital property	Another home bought with the proceeds of selling a premarital home
Property acquired after a judgment of legal separation	Income and property acquired after the court enters a judgment of legal separation
Property excluded by valid agreement	Property designated as separate in a prenuptial or postnuptial agreement; see Prenuptial agreements
Increase in value of non-marital property	Appreciation during the marriage of stock owned before the marriage (though this may raise reimbursement issues for the marital estate)
Income from non-marital property not attributable to a spouse’s personal effort	Rental income from a premarital home (depending on the circumstances)

These are the main categories; the statute lists other situations as well. The court must make specific findings on the characterization and value of the property.

The presumption of marital property

Property acquired after the marriage and before the judgment of dissolution is presumed to be marital, regardless of whose name it is titled in; non-marital property transferred into some form of co-ownership between the spouses is also presumed marital. The spouse claiming that property is non-marital must prove it by “clear and convincing evidence” (750 ILCS 5/503(b)(1)). There are corresponding presumptions for pension and retirement benefits, stock options and restricted stock acquired during the marriage (503(b)(2), (b)(3)).

Commingling and reimbursement

Depositing premarital savings into a joint account, paying down a premarital mortgage with income earned during the marriage, using money from parents to renovate the shared home: these situations are common in immigrant families. Under 750 ILCS 5/503(c), when one estate of property is contributed into another and loses its identity, it may be transmuted into the receiving estate; when commingled to the point that it cannot be traced, it becomes marital property. But the contributing estate may seek reimbursement (except for gifts) when the contribution is traceable by clear and convincing evidence. This depends heavily on evidence of where the money went: transfer records, bank statements, purchase contracts and statements of gift. For transfers made in China, keep the bank records as well, with translations where needed.

Step two: division “in just proportions,” not equal halves

Illinois is an equitable distribution state. The court assigns each spouse’s non-marital property to that spouse and then divides the marital property “in just proportions” (750 ILCS 5/503(d)). Just does not mean equal. The factors the court considers include:

Each spouse’s contribution to the acquisition, preservation or increase in value of the property, including contributions as a homemaker or to the family unit;
Dissipation of marital property by either spouse;
The value of the property assigned to each spouse;
The duration of the marriage;
Each spouse’s economic circumstances at the time of division, including the desirability of awarding the family home to the spouse with whom the children primarily reside;
Obligations and rights arising from a prior marriage;
Any prenuptial or postnuptial agreement;
Each spouse’s age, health, occupation, income, vocational skills, employability, estate, liabilities and needs;
Arrangements for the care of the children;
Whether the property division is in lieu of or in addition to maintenance;
Each spouse’s opportunity for future acquisition of assets and income;
The tax consequences of the property division.

Dissipation claims have procedural requirements: A spouse claiming that the other dissipated marital property must file a notice no later than 60 days before trial or 30 days after discovery closes, whichever is later, stating the date the marriage began undergoing an irretrievable breakdown and identifying the property and time period involved; there are also time limits (503(d)(2)).

Valuation: Property is generally valued at fair market value, and the valuation date is generally the date of trial, unless the parties agree or the court orders otherwise (503(f)). Real estate, company equity and assets in China may require an appraiser or financial expert.

Overseas property (including property in China)

In a divorce, an Illinois court in principle considers all of both spouses’ property, wherever located. Real estate, deposits and equity in China must likewise be disclosed, characterized and valued. In practice, however, there are several difficulties:

Obtaining evidence: U.S. court discovery is very difficult to carry out in China. Chinese title documents and bank statements often must be obtained by the party personally and then translated and submitted. If the other spouse refuses to provide them, discuss workable alternatives with your lawyer.
Valuation and exchange rates: The valuation method, valuation date and exchange rate must be determined, with an opinion from a professional appraiser where needed.
Enforcement: A U.S. court generally cannot directly change the registration of real estate in China. A common approach is for the court, considering all of the spouses’ property, to make an offsetting allocation of assets located in the U.S., or to order the spouse over whom it has jurisdiction to cooperate in transferring the overseas property. Whether a U.S. judgment will be recognized and enforced in China is a question for a lawyer licensed in China.
Service on a spouse in China: If the other spouse is in China, divorce papers usually must be served through the Central Authority under the Hague Service Convention, with Simplified Chinese translations attached; China has objected to direct service by mail. This process often takes a long time and should be planned in advance.
Parallel proceedings in two countries: It is not uncommon for one spouse to file in the U.S. and the other in China. Which court takes the case first, and which judgment the other country will recognize, can directly affect the outcome; have lawyers in both countries evaluate this together as early as possible.

Maintenance (spousal support) principles

Illinois calls spousal support “maintenance,” governed by 750 ILCS 5/504. The court proceeds in two steps:

First, whether maintenance is appropriate: The court considers each spouse’s income and property (including property awarded in the divorce), needs, present and future earning capacity, any impairment of earning capacity from devoting time to domestic duties, the time needed to obtain education or training, the standard of living during the marriage, the duration of the marriage, age and health, tax consequences, any valid agreement, and other factors. Marital misconduct is not considered.
If so, the amount and duration: Where the spouses’ combined gross annual income is below the statutory threshold (currently $500,000) and the paying spouse has no obligation to pay child support or maintenance from a prior relationship, the statutory guidelines generally apply: the amount is calculated as a statutory percentage of the spouses’ net incomes, subject to a cap, and the duration is the length of the marriage multiplied by a statutory factor; for marriages of 20 years or more, the court may order a longer or indefinite term. If the court deviates from the guidelines, it must state its reasons. Above the threshold, the court decides based on all the factors.

Maintenance may also be fixed-term, indefinite or reviewable, among other types. The specific calculation must be worked out together with the spouses’ actual incomes, tax situations and child support. For federal income tax purposes, maintenance under divorce or separation instruments executed on or after January 1, 2019 is treated differently from maintenance under instruments executed before that date; please confirm with a tax advisor.

Overview of the divorce process

Uncontested divorce

If the spouses can agree on property, debts, maintenance and (where there are children) the children’s care and support, they can sign a marital settlement agreement and, if there are children, an allocation judgment / parenting plan, which the court reviews before entering a judgment of dissolution. An uncontested divorce is usually faster and less expensive, and causes less harm to the family. Even in an uncontested divorce, have a lawyer review the agreement before signing, especially terms involving immigration status and overseas property.

Illinois also has a “joint simplified dissolution” procedure (750 ILCS 5/451 et seq.), but its eligibility requirements are strict: for example, the marriage has lasted no more than 8 years, there are no children in common, both spouses waive maintenance, there is no real estate and no retirement benefits (other than small IRAs), and property and income are within statutory limits. Most families with a home or retirement accounts do not qualify.

Contested divorce

If the spouses cannot agree, the general process is: one spouse files a petition and serves the other → the other spouse responds → temporary relief is requested if needed (for example, temporary maintenance, temporary arrangements for the children, or an order prohibiting transfer of assets) → financial disclosure and discovery → mediation or settlement negotiations → trial → judgment. Most cases settle before trial. Divorce cases are generally heard in the circuit court of the county where a spouse resides, such as Cook County or DuPage County, and each county also has its own local rules.

Financial disclosure

In Illinois divorce cases involving property, support or other financial issues, both spouses generally must complete the statewide standardized Financial Affidavit, truthfully listing income, expenses, assets and liabilities, and attach supporting documents as required, such as pay stubs, tax returns, bank and retirement account statements, and mortgage and credit card statements. Cook County and other local courts also have their own rules.

The Financial Affidavit is signed subject to legal liability for false statements. Concealment or misstatement can lead to sanctions or the reopening of a judgment, and seriously damages your credibility with the judge.
Assets and income in China and other countries must also be reported truthfully.
Do not suddenly move assets, hand money to friends or relatives for safekeeping, or make large purchases before or after a divorce; this may be found to be dissipation of marital property.

Document translation and authentication

Chinese-language documents submitted to a U.S. court: Marriage certificates, property title certificates, bank statements, company registration documents and the like generally must be accompanied by a complete English translation and a translator’s statement. The translation must match the original; check numbers, dates and the spelling of names especially carefully. If the other side disputes a translation, a professional translator may need to testify.
Chinese public documents: China has applied the Convention Abolishing the Requirement of Legalisation for Foreign Public Documents (the Hague Apostille Convention) since November 7, 2023, and public documents issued in China can receive an apostille. Whether one is needed, and where to obtain it, depends on the requirements of the institution using the document.
Using a U.S. judgment in China: Using an Illinois divorce judgment in China (for example, to transfer title to real estate or register a new marriage) generally requires the corresponding authentication and may require an application for recognition by a Chinese court. Consult a lawyer licensed in China about the specific procedure.

Additional tax and status issues for immigrant families

Transfers of property between spouses: Under U.S. federal tax law, transfers of property between spouses incident to divorce generally do not result in recognized gain (Internal Revenue Code section 1041), but this rule does not apply when the transferee spouse is a nonresident alien (section 1041(d)). For cross-border transfers, please work with a tax advisor.
Immigration status: Conditional green cards, pending marriage-based immigration applications, the three-year naturalization rule and the I-864 support obligation can all be affected by divorce; see How divorce affects immigration status.

How we can help

Provide legal services on property division, financial disclosure and settlement agreements in divorce cases in Illinois (and New York and Massachusetts);
Help assemble the chain of evidence for premarital property, gifts and inheritances, including money movements that took place in China;
Address immigration issues such as the I-751, naturalization and the I-864 in the divorce agreement at the same time;
Work with your lawyer, accountant and appraiser in China on overseas assets.

Frequently asked questions

The house is titled in my name alone. Is it mine in the divorce?

Not necessarily. In Illinois, property acquired during the marriage is presumed marital regardless of whose name it is in. If the house was bought before the marriage, or with money your parents gave to you personally, it may be non-marital, but you must prove that with clear and convincing evidence, and commingling also matters, such as whether marital income was used to pay the mortgage or renovate.

Is an Illinois divorce a 50/50 split?

No. Illinois divides marital property “in just proportions,” and the court considers many factors, including contributions, the length of the marriage, each spouse’s economic circumstances and earning capacity, arrangements for the children and tax consequences. The result may be close to half, or it may not.

My spouse had an affair. Can I get a larger share of the property?

Illinois does not consider marital misconduct when dividing marital property or deciding maintenance. But if your spouse spent marital property on purposes unrelated to the marriage while it was breaking down, that may be dissipation, which you can claim under the statutory procedure.

Do I need to report my home in China?

Yes. Financial disclosure requires you to list all of your assets truthfully, wherever they are. Concealing assets can lead to sanctions or the reopening of the judgment. Whether the home in China is marital or premarital property, how it is valued and how it is handled can be discussed with your lawyer once it has been disclosed.

My spouse is in China and will not come back to the U.S. Can I still get divorced?

Usually yes, but service and evidence-gathering will be more complicated and take longer. Service on a spouse in China generally must go through the Central Authority under the Hague Service Convention, with Chinese translations attached. Whether the court has personal jurisdiction over the other spouse, and whether it can enter an effective judgment concerning overseas property, must be analyzed case by case.

How is maintenance calculated?

The court first decides whether maintenance is appropriate. If it is, and the spouses’ combined gross annual income is below the statutory threshold and the paying spouse has no prior child support or maintenance obligations, the statutory formula generally determines the amount and duration, although the court may deviate if it states its reasons. The specific amount must be calculated from the spouses’ actual incomes; do not draw conclusions from online calculators.