Going through a divorce can be difficult, regardless of your circumstances or the complexity of the issues you will need to address at the end of your marriage. If you own a business, you may be worried about what will happen to it during your divorce. You may have built the business from the ground up during your marriage, or it may have been in existence before you got married. In either case, there are several important factors to take into account if you plan to keep ownership of the business after your divorce.

Factors to Consider When Dividing Marital Property

As you look at how ownership of your business will be handled going forward, the first thing to look at is whether your business was acquired during the course of your marriage. If so, then it will typically be considered marital property—meaning that it will be subject to division between you and your spouse during your divorce. Even if you owned your business before getting married, you may need to look at whether it increased in value during your marriage and whether your spouse contributed to this increase. If so, then your spouse may have an ownership claim over a portion of the business.

You may also need to consider a prenuptial agreement made between you and your spouse before getting married, which may have stated that you will continue to be the sole owner of your business in the event of divorce. If your business was founded or acquired during your marriage, a postnuptial agreement may have been created to detail how ownership of your business will be handled if the marriage dissolves. If you have an agreement in place, this may simplify the property division process and ensure that you and your spouse are clear about who will own the business.

If you have been served with a divorce petition filed by your spouse, you may be wondering if you can contest the divorce. The answer is yes, it is technically possible to contest your spouse's divorce petition. However, doing so may not be in your best interests. Regardless of how you choose to approach the divorce process, it is important to make sure you have legal representation from a qualified and experienced attorney.

The Process of Filing and Responding to a Divorce Petition in Illinois

In Illinois, either spouse may file a petition for dissolution of marriage. Once the petition is filed, it must be served to the other spouse. The spouse who was served with the petition then has 30 days to respond. This response may include objections to the divorce petition, although most of the time, a spouse will accept the petition, answer any claims made by their spouse, and allow the divorce process to proceed.

Illinois is a no-fault divorce state, and there are only a few requirements that need to be met when filing a petition for divorce. At least one spouse must have resided in the state for 90 days prior to filing the petition. When providing a reason, or "grounds," for the divorce, a divorce petition will simply state that the petitioner wishes to end their marriage due to "irreconcilable differences." Illinois law defines irreconcilable differences as an irretrievable breakdown of a couple's relationship to the point that attempts to reconcile would not be practical and would not be in the best interests of the couple or other family members.

Originally published: February 16, 2021 -- Updated: May 25, 2022

UPDATE: Below, we look at how the divorce laws may address attempts by a spouse to hide or conceal assets prior to or during their divorce. However, it is also important to understand how the law addresses the dissipation of marital assets. Dissipation is the use of marital property for non-marital purposes after a marriage has begun to undergo an irretrievable breakdown. Asset dissipation can take many forms, including cases where a spouse spends money on an extramarital affair, such as by taking vacations with a lover or buying them gifts. However, it may also involve purchasing items or using marital funds for a person’s sole benefit, spending money on a drug or gambling addiction, or purposely destroying property with the intent of harming the other spouse.

Issues related to the property a couple owns are often some of the most complex factors that need to be addressed during the divorce process. While multiple types of assets and debts need to be considered during the property division process, determining how to handle ownership of a family business will often be one of the most consequential decisions. Whether a business is considered to be marital property because it was founded after the couple’s marriage or separate property that a spouse owned before getting married, it will be essential to perform a business valuation to determine the value of this asset.

Business Valuation Methods for Divorcing Business Owners

It will be important for both spouses to make sure a business will be handled correctly during their divorce. A family-owned business may be a source of income for one or both spouses, or it may represent a large portion of the couple’s total assets. Even if a business is a separate asset solely owned by one spouse, it will be important to determine the value of this asset to ensure that both spouses have an understanding of their individual financial resources. This can not only ensure that marital property will be divided fairly and equitably, but it may also help determine whether spousal maintenance will be appropriate. 

Getting a divorce is not easy. When you got married, you probably expected to stay with your spouse for the rest of your life. Ending your marriage will not only require you to give up your expectations, but you may also experience difficulties as you work to establish yourself as a newly single person. Disputes with your spouse during the divorce process can add to these difficulties, making it harder for you to separate your lives from each other and move forward. To minimize disputes and complete the divorce process more quickly and effectively, you may wish to pursue an uncontested divorce.

Reaching a Divorce Settlement Without Litigation

A contested divorce generally involves litigation and possibly a trial during which witnesses will be called to testify, evidence will be presented, arguments will be made by each party’s attorney, and a judge will make the final decisions. This process can be very expensive and time-consuming. In most cases, spouses will prefer to resolve their issues outside of court. This will not only help them minimize conflict, but it can also allow them to reach agreements on divorce-related issues and create a settlement they can both be satisfied with.

If you plan to pursue an uncontested divorce, you and your spouse will need to work together to create a divorce settlement by negotiating with each other with the help of your respective attorneys. You may also use mediation to gain a full understanding of the issues you will need to address and reach agreements on how these matters should be handled going forward. A divorce settlement will address issues such as: