Marital and Non-Marital Property in Illinois: Understanding the Differences and Why Sometimes, its Both
February 10, 2023 at 7:00 PM
by Amanda
A small house similar to the ones in Edwardsville or Belleville

Marital Property

Marital property is any property (stuff, money in your bank account, paychecks earned, tax returns received) that was acquired during the marriage unless it is exempt under the statutes defining marital property. It does not matter whose name is on it either, who eanred the money, who worked more, or who did what to earn it. This includes property that was acquired by either spouse as long as it was acquired during the marriage and is not otherwise statutorily exempt. Additionally, any increase in value of a non-marital property during the marriage may also be considered marital property.

Marital property is divided equitably between the spouses in a divorce, unless they have agreed upon a different arrangement. This might mean they each receive half, or they might receive some other amount. The division of the property by a Court can include a wide range of items, such as the family home, savings accounts, investment accounts, retirement accounts, and personal property.

Often I am asked if its always divided 50/50. The answer is no, its divided equitably, which could be 50/50 or it could be 70/30. An equitable division may be even but looks to achieve a division that is fair, which may or may not be even.

Non-Marital Property

Non-marital property, on the other hand, is defined by statute as an exception to the rule that any property acquired in the marriage belongs to the marriage. The main categories are: any property that was acquired by either spouse before the marriage, or through inheritance or gift during the marriage. This type of property is not subject to division in a divorce. Instead, it remains the separate property of the spouse who acquired it.

It is important to note that non-marital property can become marital property if the spouse who acquired it starts using it in a manner that benefits both spouses. For example, if a spouse inherits a house and starts living in it with their spouse after the marriage, it may be considered marital property and subject to division in a divorce. Alternatively, the marriages's contribution to the house payments, improvements to the house, ect, might be marital.

Characterization of Property

One of the more difficult tasks in property division during a divorce is characterizing property as either marital or non-marital. This can be complicated, especially in cases where the property has been acquired over a long period of time or might have characteristics of both marital and non-marital property.

In Illinois, the court will make a determination based on the date of acquisition, the source of the funds used to purchase the property, and the manner in which the property was used during the marriage. The court will also consider any prenuptial agreements that may affect the characterization of the property. The Court also presumes that if it was created during the marriage, it is marital property.

The property division process in a divorce can be complicated and stressful. If you are facing a divorce in the metro-east areas of Illinois, it is important to work with an experienced family law attorney who can help you navigate the property division process and protect your rights and interests. If you and your soon-to-be-ex can work through a fair division of your stuff, call my office to see if I can help you with the paperwork for your divorce. You can also contact me through my website, which will be sent directly to me, or you can chat with LawCat.