One of the most difficult issues to settle in an Illinois divorce case is property division. This is true whether it is a high asset divorce and there is significant property that both parties stake a claim to or if it is a more modest divorce and there are items of financial and sentimental value in dispute. The law has certain requirements for what constitutes marital and non-marital property. While there can still be a certain amount of confusion and disagreements over property, it is important for people who are planning to divorce or are in the middle of a divorce to understand the difference.
Any property that was acquired by one of the spouses after the marriage will be considered marital property except in certain exceptions. If the property was acquired as a gift, because the spouse receives it as a descendent, or as a legacy, it will be non-marital property. If there was property that a spouse had prior to the marriage and it was exchanged for a property after the marriage, it is non-marital property. Once the spouses have been legally separated and one acquires property, it will not be considered marital property. In some cases, there will be a valid agreement between the parties such as a prenuptial agreement or a postnuptial agreement – in such an instance, the property will be excluded from being marital property.
If property was acquired before the couple was married except in retirement plans that could apply to both marital and non-marital circumstances, it is non-marital property. When a spouse acquired property with a loan using non-marital property as collateral with the marital estate repaying it, it is non-marital property. If non-marital property increased in value – regardless of whether there were contributions due to marital property – it is non-marital property. If there was income from a property that was acquired in any of the above-listed ways and the income cannot be deemed as being due to the spouse, it will be non-marital property.
Regardless of what the law says, there can be variances based on the individual situation. With property division disputes, there might be a middle ground at which the spouses can negotiate. Or it might be a contentious situation with raging battles about everything. In any case, having legal advice regarding property division and what constitutes marital and non-marital property is essential.
Source: ilga.gov, “Sec. 503. Disposition of property and debts. — (a),” accessed on March 13, 2018