What Happens If We Disagree Regarding Marital Property Division?

 Posted on January 28, 2026 in Asset Division

There are many reasons that divorces involving older adults are complex. Among them is the fact that older adults generally have more significant assets than younger people in their 20s or 30s. You may have investments, real estate properties, retirement assets, stocks, multiple motor vehicles, high-value personal property, and more.

Deciding who keeps what is often one of the hardest parts of a divorce. If you and your soon-to-be ex disagree regarding how to split up your shared property, it is important to know how Illinois law addresses the division of assets during a divorce. At Divorce Over 50 - Goostree Law Group, our Wheaton, IL divorce lawyers have over 50 years of legal experience, and we can guide you through the most difficult parts of asset division.

The Difference Between Marital and Separate Property (And Why it Matters)

In Illinois, asset division usually starts with making the distinction between marital and separate property. Marital property is generally anything you or your spouse obtained during the marriage. It doesn’t matter whose name is on the title or who made the purchase. If it was earned, bought, or built while you were married, it may be treated as marital, with some exceptions.

Separate property is usually what you owned before the marriage. It can also include certain gifts and inheritances that were meant for only one spouse. That said, separate property can get messy. If you mix it with marital money, it might lose its "separate" label. For example, using marital income to pay the mortgage on a house you owned before marriage can raise questions. Putting an inheritance into a joint bank account can do the same. The court may look at what happened and decide how to divide it.

This difference matters because Illinois does not automatically split everything 50/50. Instead, the court aims for a fair outcome. Knowing what is marital versus separate helps set realistic expectations, and it can keep you from giving up something you may not have to share.

Three Ways to Handle Property Division in Your 2026 Divorce

Negotiated Settlement Agreements

Illinois courts encourage divorcing spouses to negotiate an agreement regarding the division of their property and debts if possible. If you and your spouse disagree about who should keep the marital home, how to address valuables such as jewelry or fine art, whether to sell your vacation home, or any other aspect of the property division process, consider working with a divorce attorney. 

Mediation

Mediation can be a practical way to handle property division without arguing for months in court. Through mediation, you and your spouse sit down with a neutral third person, called a mediator. The mediator does not pick a side. Instead, the mediator helps you talk through the issues, find common ground, and work toward a deal you can both live with.

Property division is often a good fit for mediation because many decisions come down to trade-offs. Maybe one spouse wants to keep the house, while the other wants more retirement funds. Maybe you both want to avoid selling a business. Mediation lets you explore options that a Judge might not have time to craft in a courtroom.

Mediation can also help you organize the details. You can walk through bank accounts, vehicles, debts, and personal property step by step. That structure can lower stress and reduce surprises. If you reach an agreement, the terms can be put into your divorce paperwork. For many couples, mediation is a calmer path to a clear plan.

Divorce Discovery and Litigation

If you and your spouse can’t reach an agreement with help from your attorneys or through mediation, the next step is litigation. Each spouse’s attorney will gather financial documents and other information related to the case. They may use depositions, interrogatories, requests for admission, or subpoenas to gather the necessary documentation and financial data.

There is still an opportunity for the parties to reach a settlement during litigation. In fact, in the vast majority of contested divorce cases, the spouses are able to reach a settlement before the case advances to trial.

If the case is not resolved before the trial date, a judge will consider information and evidence from both sides and then issue a ruling based on Illinois law. The Illinois Marriage and Dissolution Act lays out many factors that are considered during asset division, such as:

• Each spouse’s contribution to the acquisition of property

• Non-financial contributions made to the marriage or household

• Any dissipation of assets or financial fraud

• The value of the nonmarital and marital property assigned to each spouse

• The duration of the marriage

• Child custody provisions

• Each spouse’s ability to earn income in the future

• Tax-related factors

Contact a DuPage County, IL Family Law Attorney

If you are over age 50 and plan to divorce, you need a divorce lawyer who understands the complexities of gray divorce. Reach out to our skilled team of Wheaton, IL divorce lawyers to discuss your needs. Call 630-634-5050 to set up a free initial consultation today.