Most people know quite a bit about divorce law before they ever even have to consider divorce: kids get a schedule with each parent, one spouse may pay the other spouse support and assets get divided.

Below each of those principles are thousands of rules which help Illinois divorce courts come to equitable conclusions and guide Illinois divorce lawyers to manageable settlements.

While all things are possible by agreement, there are definitely some things that are impossible when put before an Illinois divorce judge. Those impossibilities need to be determined as soon as possible in order to establish boundaries in the rest of your negotiations.

A great first step in determining what we will not be negotiating or litigating is establishing what assets cannot be split in an Illinois divorce.

Marital vs. Non-Marital Assets In An Illinois Divorce

Only assets which are deemed by an Illinois divorce court to be “marital” may be split by an Illinois divorce court.

The court shall make specific factual findings as to its classification of assets as marital or non-marital property, values, and other factual findings supporting its property award.” 750 ILCS 5/503

Marital assets are those assets which were acquired by either or both spouses during the marriage.

“‘[M]arital property’ means all property, including debts and other obligations, acquired by either spouse subsequent to the marriage” 750 ILCS 5/503(a)

“For purposes of distribution of property, all property acquired by either spouse after the marriage and before a judgment of dissolution of marriage or declaration of invalidity of marriage is presumed marital property.” 750 ILCS 5/503(b)

Upon determining that an asset is marital, Illinois divorce courts “shall divide the marital property without regard to marital misconduct in just proportions” 750 ILCS 5/503(d)

In contrast, Non-marital assets cannot be split in an Illinois divorce. “[T]he court shall assign each spouse’s non-marital property to that spouse.” 750 ILCS 5/503(d)

Therefore, in order to ensure that an asset cannot be divided in an Illinois divorce, you must assure the Illinois divorce court that the asset is non-marital.

What Is Non-Marital Property In An Illinois Divorce?

“[T]he following…which is known as “non-marital property”:

(1) property acquired by gift, legacy or descent or property acquired in exchange for such property;

(2) property acquired in exchange for property acquired before the marriage;

(3) property acquired by a spouse after a judgment of legal separation;

(4) property excluded by valid agreement of the parties, including a premarital agreement or a postnuptial agreement;

(5) any judgment or property obtained by judgment awarded to a spouse from the other spouse except, however, when a spouse is required to sue the other spouse in order to obtain insurance coverage or otherwise recover from a third party and the recovery is directly related to amounts advanced by the marital estate, the judgment shall be considered marital property;

(6) property acquired before the marriage, except as it relates to retirement plans that may have both marital and non-marital characteristics;

(6.5) all property acquired by a spouse by the sole use of non-marital property as collateral for a loan that then is used to acquire property during the marriage; to the extent that the marital estate repays any portion of the loan, it shall be considered a contribution from the marital estate to the non-marital estate subject to reimbursement;

(7) the increase in value of non-marital property, irrespective of whether the increase results from a contribution of marital property, non-marital property, the personal effort of a spouse, or otherwise, subject to the right of reimbursement provided in subsection (c) of this Section; and

(8) income from property acquired by a method listed” 750 ILCS 5/503

For an asset to be non-divisible in a divorce and should stay in the name and possession of a particular spouse, you must prove that the asset qualifies under one of the above 8 categories.

A spouse’s testimony as to when and how they acquired the property will probably be sufficient to prove the asset is non-marital property unless the other spouse’s testimony is contrary.

Either spouse can introduce a document as an exhibit to corroborate their testimony.

“’To corroborate’ means to add weight or credibility to a thing by additional and confirming facts or evidence, and ‘corroborating evidence’ means evidence supplementary to that already given and tending to strengthen or confirm it.” In re AP, 688 NE 2d 642 – Ill: Supreme Court 1997

It is hard to argue with a receipt, will, prenuptial agreement, or a note indicating a gift.

If an Illinois divorce court cannot determine if an asset is marital or non-marital, the asset will be deemed marital (the asset can still be divided inequitably later)

“Any doubt as to the nature of the property must be resolved in favor of the finding that it is marital” In re Marriage of Steel, 2011 IL App (2d) 080974

What Assets Can Awarded Without Dividing Or Liquidating The Asset

The division of marital assets is rarely an actual division of each asset.

No one takes two dining room chairs and leaves the other two chairs. No one saws a car in half. No one ropes off portions of a house for individual use.

No one even sells each item and then divides the proceeds between the parties. Each party keeps what they want and then one party may get an equalizer payment if that party gets a verifiably larger share of the marital estate.

Assets get awarded to each party in their entirety. Preferably, the parties agree that the division is equitable. Equal division is not necessary.

“The [Illinois Marriage and Dissolution of Marriage] Act and  does not require an equal division of marital property…it requires an equitable division.” IN RE MARRIAGE OF DEMAR, 897 NE 2d 322 – Ill: Appellate Court, 1st Dist., 1st Div. 2008

If the parties cannot agree that the division is equitable, the parties must turn to the Illinois divorce court to allocate each item.

Illinois divorce courts will then allocate individual items based on the “value of the property assigned to each spouse” 750 ILCS 5/503(d)(3) and/or “needs of each of the parties” 750 ILCS 5/503(d)(8).

The Illinois judge will do their best to allocate assets to the party that needs the asset. You will be awarded the car you used. You will be awarded hot tub that helps your arthritis. You will be awarded the tools you use at work.

Then, an Illinois judge will approximate the values of everything awarded so that each party gets an equitable (if not equal) share of the marital estate. Any inequitable balance will be resolved by an award of the cash accounts of the couple.

Often, there is one asset which is simply too large to award to one spouse without liquidating: the house.

Unless the parties have tens or even hundreds of thousands of dollars to offset the award of a house, the house will be ordered sold and the proceeds split between the parties.

In a divorce “[w]here children are involved, the primary objective of the court is to provide adequate support for the children” In re Marriage of Stone, 155 Ill. App. 3d 62, 75, 507 N.E.2d 900, 908 (1987)

If there are children, a marital home can be awarded exclusively to one spouse after the court has considered, “the custodial provisions for any children” 750 ILCS 5/503(d)(9).

More typically, the person who gets the house has to refinance the house to pay the other spouse their marital interest in that house.

Eliminating issues is the hallmark of a good divorce lawyer. So, a great first step in an Illinois divorce is to figure out what assets you will not be fighting over…because you are not allowed to split those assets. To find out which of your assets cannot be divided in your Illinois divorce contact my Chicago, Illinois family law firm to schedule a free consultation with an experienced Illinois divorce attorney.