The recent divorce case of Maya and Michael Polsky gathered a lot of press attention, even though the parties involved are not Hollywood celebrities. The property that was distributed between them carried a big cash number. The judge in their case split the marital estate of $370 million dollars in half and gave each one an equal amount.

Illinois is not a community property state, so property acquired during marriage is not always divided 50/50. Illinois is an equitable distribution state and our courts can award any percentage they feel is fair and equitable to each of the parties, it could be 30 percent and 70 percent, 60 percent and 40 percent or 50 percent and 50 percent, depending on various statutory criteria set forth in the Illinois law.

In Illinois only that property which is acquired during the course of the marriage other than by gift or inheritance is considered marital property subject to equitable division. Property that either party brings into the marriage but do not commingle, property that either party inherits or is gifted by some outside source during the course of the marriage also is nonmarital and the court by law cannot take any part of the nonmarital property from one spouse and give it to the other, however the court cannot ignore the existence of nonmarital property, how much there is and which of the spouses has it. So that if one of the spouses has a million dollars worth of nonmarital property and together the spouses have $200,000 of marital property, the court could conceivably give a larger portion or even all of the marital property to the one who has no nonmarital property, deciding that it would be the equitable thing to do.

Property distribution between the spouses has nothing to do with whether either of them needs alimony, also referred to as spousal support or maintenance, that is something that the court can award based on the length of the marriage, whether or not the parties have marketable skills and are able to use their skills to earn a livelihood. It also has to do with whether there are any children and who is going to have custody of the children, what it will cost that individual for the proper child care while he or she goes to work. Yes I said he or she, because under Illinois law, our law is gender neutral and a husband could be the stay at home "person" taking care of the child or children while the wife goes to work, especially if the wife is capable of and earns far more money than the husband.

A good example of that is a case I had sometime ago where the wife was an investment banker earning six figures and the husband was a school teacher obviously earning much less than six figures in his job.

By Illinois law there is no mandated 50 percent division of marital assets, the mandate is, what is equitable and how the court determines that depends on various statutory factors. For example, there might be a prenuptial agreement that dictates to the court how the marital estate should be divided. Courts will also look at the age, health, occupation and skill of both parties to earn a livelihood. Who is going to have the day-to-day residential care of the children that may exist of the marriage is a factor. And as stated before, whether either of the parties have nonmarital property and what is its value. The tax consequence of a property division is important, if the wife gets the marital home, which she and perhaps the children will be living in but is nonincome producing and the husband gets a six flat apartment building that is income producing and for which he can deduct substantial expenses for running that six-flat building in addition to the tax deductions for interest on any mortgage, then obviously his six flat might have a greater value in a property settlement than the wife's marital home; therefore, the court has to look at the tax consequence in the settlement.

The age of the parties at the time of their divorce, their health condition, as well as their opportunity to earn more money and acquire more property in the future is important when the court determines what is an equitable distribution at the time of the divorce.

Yes a marriage is a partnership; however, like in a business partnership sometimes one partner gives very little time or attention to the business of the partnership and in fact whatever time and attention they pay to it very often results in the wrong decisions and the wrong advice that causes the business to have problems and the same is true in a marriage partnership.

It is possible that a wife has given her husband a lot of solid business advice in the business that he's involved in, or it could be that everything that the wife has recommended has turned sour and therefore the husband has incurred large business losses.

Obviously, all these details have to be considered by a court in deciding what is an equitable property distribution at the time of the divorce.

I have not had the opportunity of reading the trial record in the Polsky case and therefore I do not know what the judge took into consideration when he came to a 50 percent-50 percent division of the parties marital property and I do not know the attorney who represented Polsky, but I do know the attorney for Polsky and he is a very competent and skilled attorney and I am certain that he gave the judge enough legal basis for the judge to determine that after a 30-year marriage and her guidance and support, Polsky was entitled to an equitable division amounting to 50 percent. If Polsky disputes the decision, the Appellate Court may feel differently.