Property Division in Illinois – Marital Property vs. Non-Marital Property
In Illinois family courts, the division of assets and property acquired during the marriage is done 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.
The 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 spouse files for a divorce, 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.
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
- Primary home and vacation homes
- Retirement plans
- Stock and stock options
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.
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.
Property division is one of the most contentious elements of an Illinois divorce. If you are having difficulty in understanding the nature of your property, our family law attorneys 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.