Many couples see marriage as the opportunity to build a life together. From purchasing a house or a car; to opening up joint financial accounts; to choosing the furniture and artwork that suit your unique style, there are countless financial decisions that must be made over the course of a marriage. The same is true when two spouses decide to seek a divorce, and that property must be divided.
Here in Illinois, it’s incredibly important to understand the difference between marital and non-marital property, and what this distinction means for the distribution of property during a divorce. The smallest factors — such as when or how certain property was purchased — can have a big impact when it comes time to divide up a couple’s assets and allocate their debts and obligations.
What Is Considered to Be Marital Property In Illinois?
Broadly speaking, marital property includes all assets and property acquired over the course of the marriage, usually without special regard to how the property is titled.
All marital property is eligible to be divided during a divorce. In Illinois, the courts seek to provide for an equitable distribution of marital property — that is, a fair distribution of property between spouses, based on a number of important personal factors, including each partner’s contributions to the marriage and their future opportunities for acquiring assets or income.
Examples of Marital Property
As a result, marital property is an incredibly broad category, and commonly includes important assets and liabilities acquired during a marriage such as:
- Real estate
- Investment accounts
- Furniture and household appliances
- Pensions and retirement plans
- Insurance policies
- Stocks and stock options
What Is Considered to Be Non-Marital Property In Illinois?
Non-marital property includes assets, property, and liabilities which belong solely to one partner. As a result, non-marital property is not equitably distributed in a divorce, and continues to belong to the person who owns it.
Illinois laws clearly delineate what constitutes non-marital property, though this distinction can become murky and more complex in practice, for reasons we’ll discuss below. Broadly speaking, assets and obligations are considered to be non-marital when:
- The property was purchased before the marriage, and remains solely in one owner’s name.
- The property was acquired by gift, legacy, or descent — or acquired in exchange for property acquired in this way
- The property is acquired after a valid judgment of legal separation
- The property is excluded due to a valid written agreement, such as a prenuptial or postnuptial agreement
- The property has been obtained by judgment awarded to one spouse from the other spouse
- Increases in value or income coming from non-marital property, assuming no personal effort or contributions can be attributed to a spouse
Marital and Non-Marital Property in Illinois: Important Considerations and FAQs
The day-to-day purchases and financial decisions involved in running a household and supporting a marriage can be complex. As a result, the distinctions between marital and non-marital property are not always so cut-and-dry in practice. Depending on your unique circumstances, there are a lot of important considerations to take into account, including:
- Commingling and Transmutation of Assets. Oftentimes, spouses may commingle their assets intentionally or unintentionally, which can complicate the distinction between marital and non-marital property. As an example, one spouse may place money from a premarital transaction into a bank account shared jointly with a spouse, or use individual funds for family or marital expenses. This may transmute certain funds or assets into marital property.
- Presumptions of Marital Property. Under Illinois law, there are many types of assets — including pension plans, individual retirement accounts, and stocks — that are presumed to be marital property in most cases, if they were acquired by or participated in after the marriage and before the divorce or legal separation. However, many of these assets may have both marital and non-marital characteristics. Importantly, if one partner can clearly and convincingly make an argument that the asset was acquired in a way that makes it a non-marital asset, they can overcome the presumption of marital property.
- Prenuptial and Postnuptial Agreements. Whether written before marriage or after the “I do’s,” an agreement between partners can determine how certain property will be divided in the event of a dissolution of marriage. For couples, a prenup or postnup can help protect non-marital assets like an individually owned business or real estate purchased prior to the marriage, while providing for a more efficient division of marital property and potentially helping to save on future costs, such as litigation and attorney’s fees.
- Property Acquired In Contemplation of Marriage. Leading up to a marriage, one or both individuals in the relationship may make purchases in anticipation of the marriage. Illinois law specifies that property acquired prior to a marriage that would otherwise be non-marital property shall not be deemed to be marital property solely because the property was acquired “in contemplation of marriage.”
One of the most effective ways to understand the variables that affect you may be to consult with an experienced family law attorney in your area. A legal professional can help you get a handle on your unique situation, and understand what constitutes marital vs. non marital property, while also exploring all of your options when it comes to dividing property during a divorce.
How Do Illinois Courts Divide Marital Property in Divorce?
A handful of states have adopted “community property” laws, in which there is an expectation that marital property will be divided 50/50. In Illinois, there is not an expectation of an even distribution of marital property. Instead, Illinois requires marital property to be distributed “in just proportions considering all relevant factors” — that is, fairly and equitably based on the amount and types of marital property, and the personal circumstances of both spouses and their dependents.
Some of the important factors that will be considered when dividing property include (but are not limited to):
- The contribution that each spouse made to the acquisition and preservation of property (including non-paid contributions, such as acting as a homemaker)
- The value of all marital property
- The length of the marriage
- The relevant economic circumstances for each spouse at the time of the division of property
- Allocation of parental responsibilities (formerly known as child custody)
- The age, health, occupation, employability, amount of income, vocational skills, needs, and liabilities of each spouse
- Obligations or rights arising from a previous marriage
- Terms of any prenuptial or postnuptial agreements
- Tax consequences from property division
- Determining if marital property will be awarded in addition to, or in lieu of, spousal maintenance (formerly alimony)
- Dissipation and/or misuse of marital funds (for example, if one party destroyed or devalued marital assets, or excessively spent marital funds for non-marital purposes)
It is important to remember that Illinois is considered to be a “no-fault” divorce state. This means that marital misconduct — such as infidelity — does not directly affect the distribution of assets in a divorce.
Do You Have Any More Questions About Divorce or Family Law?
Coming to an agreement on your own about how property is divided in divorce can be confusing and exhausting, even under the best of circumstances. Here in Illinois, there are many details and conditions in family law that can be difficult to fully understand. Fortunately, you don’t have to go through this stressful transition alone.
At the Law Offices of J. Jeltes, Ltd., we make it our mission to ensure that our clients understand the divorce process at each and every step of the way, including the distinction between marital and non-marital property.
Our attorneys and staff are skilled in handling legal matters in some of life’s most challenging family transitions, including divorce and the many considerations that go along with it — such as issues of property division, maintenance (formerly spousal support or alimony), allocation of marital debt, parental responsibility, and parenting time. Our legal professionals are driven, attentive, and dedicated to achieving the best results possible. We truly understand that every situation is unique, and before hiring our firm our attorneys will provide you with a comprehensive one-on-one consultation to discuss your legal concerns and goals.
If you have any more questions about any aspect of divorce in Illinois, don’t hesitate to reach out to our team of experienced and compassionate advocates to continue the conversation.