Illinois Property Division in Divorce: Marital vs Non-Marital Assets

Two individuals signing documents related to property division, with car keys and house keys on a table, symbolizing family law and divorce proceedings.

In Illinois family courts, the division of assets and property acquired during the marriage is divided equitably, instead of equally. But things start to get confusing when it comes to distinguishing marital property from non-marital property. Illinois is not a community property state, and everything from money to assets and estate acquired during the time a couple was married is presumed to be part of the marriage. However, what is considered as equitable may vary in different cases based on their unique circumstances.

Property Rights of Spouses

The rights of a married couple are quite similar to a single person who individually buys, sells, owns, and gives away property. Once either of the spouses files for a divorce in Illinois, a stay order is issued that prohibits both of them from disposing of property in any way without the court’s permission. This maintains the status quo, enabling the court to decide the right way to divide the property.

Marital Property In Illinois

Any property and asset that has been purchased or appraised while a couple is married is considered as marital property and is subject to equitable distribution upon divorce. Regardless of how title is held to the property, if it is a marital property, it will be split between the spouses. Some examples of marital property are:

Bank, brokerage, and investment accounts
Household furniture
Partnership and business interests
Pensions
Primary home and vacation homes
Retirement plans
Stock and stock options
Vehicles

Determining whether a property is marital property depends on its nature, instead of how title is held. That is why a retirement plan is considered common ownership even when it is in one spouse’s name, and is split at the time of divorce.

Non-Marital Property

Under Illinois law, non-marital property can be defined as a property:

Received as a gift, descent, or legacy
Obtained by a spouse after legal separation
Purchased before the marriage
Excluded by a valid agreement signed between the parties
Acquired in exchange of a property received as a gift, descent, or legacy
Acquired by judgment awarded by the other spouse

A good example of a non-marital property is inheritance. If the inheritance is in the form of money and it is kept in a solely-titled account, that property will fall under non-marital property. However, some actions of the owner can transmute a non-marital property into a marital property. The laws governing transmutation are quite complicated, and it is recommended for the owner to seek legal advice of an experienced attorney to have a clear idea of their marital and non-marital property.

Frequently Asked Questions About Property Division In Illinois Divorce

What are the legal grounds for divorce in Illinois?

Illinois operates as a no-fault divorce state, meaning that couples seeking a divorce do not need to prove wrongdoing or fault on the part of either spouse. The sole legal ground required is the presence of “irreconcilable differences,” which signifies that the marriage has irreparably broken down and both parties can no longer coexist as a married couple. If both spouses agree, the court has the discretion to waive the six-month separation requirement, allowing for a more expedited divorce process. Notably, traditional fault-based grounds, such as adultery or cruelty, are no longer recognized in Illinois divorce proceedings.

How do I file for divorce in Illinois?

To begin the divorce process, one spouse must take the formal step of filing a Petition for Dissolution of Marriage at the circuit court in the county where either spouse resides. After the petition is filed, the other spouse will be officially served with the petition and given an opportunity to respond. This process can be intricate and may involve several stages, including temporary orders for immediate concerns, discovery procedures to gather information, settlement negotiations to resolve disputes, and ultimately, a final hearing to legalize the dissolution of the marriage.

Is there a residency requirement?

Yes, Illinois law mandates that at least one spouse must have established residency in the state for a minimum of 90 days prior to initiating divorce proceedings. This residency requirement is in place to ensure that the court has the necessary jurisdiction to hear and decide on the divorce case.

How long does a divorce take?

The duration of a divorce can significantly vary depending on the circumstances involved. For uncontested divorces—where both parties amicably agree on all matters, including division of assets, child custody, and support—resolutions can often be achieved in just a few months. However, in contrast, contested divorces—where disagreements exist regarding children, property, or financial support—can extend the process and may take a year or even longer. Factors such as court schedules, the complexity of the marital estate, and the willingness of both parties to cooperate will all influence the timeline.

Do I need a lawyer to get divorced?

While legal representation is not a strict requirement in Illinois divorce cases, it is highly advisable to consult with an attorney, especially when children, valuable property, or spousal support are involved. Divorce can be emotionally charged and legally complex, and an experienced attorney can provide essential guidance and support throughout the process. Illinois courts do offer resources for self-representation, but navigating the legal intricacies without professional assistance can pose significant challenges.

How is property divided?

In Illinois, the process of property division follows the principle of “equitable distribution.” This means that marital property—including income, real estate, retirement accounts, and debts incurred during the marriage—is divided in a manner that is fair, although not necessarily equal. The court will look at various factors to determine what constitutes a fair division, including the marriage’s duration, each spouse’s contributions (both financial and non-financial), and the financial circumstances of each party. Non-marital property, such as inheritances or assets held before marriage, can be excluded from division if documented appropriately.

What about spousal support (alimony)?

Spousal maintenance, commonly referred to as alimony, may be granted based on several factors, such as income disparities between the spouses, the length of the marriage, each spouse’s physical and emotional health, and their respective earning capacities. Illinois courts utilize statutory guidelines to help determine the amount and duration of maintenance. However, judges retain the discretion to deviate from these guidelines if warranted by specific circumstances. The maintenance can be awarded as temporary, for a fixed term, or indefinitely, depending on the unique situation of the couple.

How is child custody handled?

In Illinois, the concept of custody has been reframed as the “allocation of parental responsibilities.” When determining custody arrangements, courts prioritize the best interests of the child, taking into account a variety of factors such as each parent’s level of involvement in the child’s life, the stability each parent can provide, and the child’s own preferences if they are mature enough to express their views. The specifics of parenting time and decision-making authority are carefully laid out in a Parenting Plan, which must receive court approval to ensure its enforceability and legitimacy.

Can child support be ordered during divorce?

Yes, courts in Illinois can establish child support orders during divorce proceedings. Child support is calculated based on the income shares model, which considers the incomes of both parents and the amount of parenting time each parent has with the child. Additionally, courts may include provisions for expenses such as health insurance, childcare costs, and extracurricular activities. It is important to note that child support orders are not set in stone and can be modified in the future if the financial circumstances of either parent change significantly.

Can we use mediation or collaborative divorce?

Certainly! Illinois strongly advocates for alternative dispute resolution methods to help couples minimize conflict and reduce the costs associated with divorce. Mediation, in particular, is often mandated in cases involving custody disputes. In a collaborative divorce, both parties work alongside their attorneys and neutral professionals to explore options and reach a mutually agreeable settlement outside the courtroom. This approach can facilitate a more amicable resolution and promote effective communication between the parties.

Contact Our Schaumburg Property Division Attorney

Property division is one of the most contentious elements of an Illinois divorce. If you are having difficulty understanding the nature of your property, our family law attorneys in Schaumburg can help you and make sure that your property and assets are protected from division. Contact the Law Office of Fedor Kozlov, P.C. today at (847) 241-1299 to schedule a free initial consultation.

Law Office of Fedor Kozlov, P.C.

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By The Law Office of Fedor Kozlov, P.C.| Posted on October 7, 2025Tags: property division