The division of property is a major aspect of the Illinois divorce process. Shared assets and debts are part of the marital estate, and when the marriage is dissolved, those assets are divided between the spouses. In most cases, any assets or liabilities acquired during the marriage are included in the marital estate. Assets and debts that a spouse owned before getting married are separate or non-marital property. However, property division is rarely this simple and there are several exceptions to these rules.
Marital and Non-Marital Property
Assets and income that a spouse purchased or earned while they are married are typically marital assets. This means that both spouses jointly own these assets. Illinois is an “equitable distribution” state, so these assets are divided equitably during divorce through a negotiated marital agreement or the court.
Separate or non-marital property belongs to only one spouse. Assets and debts that a spouse entered into the marriage with are usually assigned to that spouse during divorce. Typically, separate property includes:
- Property a spouse owned before getting married
- Property a spouse received through an inheritance
- Property a spouse received through a gift
- Property that is excluded from the marital estate through a prenuptial agreement, postnuptial agreement, or legal separation
Factors That Complicate Ownership and Division of Property
Determining what is separate property during divorce can be much more complicated than it initially seems. When both spouses contribute to the increase in value of an asset, the asset may no longer be considered separate property. For example, if a spouse owns a vacation home before getting married but both spouses pay for the home’s upkeep, the home may be considered a marital asset during divorce.
Comingling, or mixing of assets, may also complicate property division during divorce. For example, money a spouse receives through an inheritance is usually non-marital property, but if it is mixed with marital funds, the money may lose its identity as non-marital.
Some assets are partially marital and partially non-marital. For example, retirement funds that a spouse acquires before the marriage are separate property. However, funds acquired during the marriage are marital assets. So, a retirement account may contain both marital and non-marital funds. Business assets may also be partially marital and partially non-marital property.
Contact a DuPage County Divorce Lawyer for Help With Property Division
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