What Does the State of Illinois Consider Non-Marital Property?
As a divorce attorney in Schaumburg, I often meet clients who are unsure which assets they can rightfully keep when their marriage ends. Property division is one of the most emotional and complex parts of a divorce, and understanding what Illinois law classifies as non-marital propertycan make a significant difference in the outcome of your case. Under Illinois law, not all property is divided equally. Certain assets are legally considered separate from the marital estate and belong solely to one spouse. Recognizing what qualifies as non-marital property can help you protect your financial interests before, during, and after your divorce.
Understanding Marital vs. Non-Marital Property Under Illinois Law
Under 750 ILCS 5/503 of the Illinois Marriage and Dissolution of Marriage Act, all property acquired by either spouse after the date of the marriage and before a judgment of dissolution is presumed to be marital property. However, the statute also sets out specific exceptions where assets are classified as non-marital property.
Non-marital property includes:
- Property acquired by gift, legacy, or descent.
- Property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift or inheritance.
- Property acquired by a spouse after a legal separation.
- Property excluded by valid agreement of the parties, such as a prenuptial or postnuptial agreement.
- Any judgment or property obtained by one spouse from the other, such as maintenance or personal injury settlements specifically designatedto one spouse.
- Income from non-marital property, if not combined or used for marital purposes.
When I review a client’s financial picture, I look closely at when and how each asset was obtained. The classification of property as either marital or non-marital determines whether it will be divided or retained solely by one party.
Gifts And Inheritances: Keeping Separate Assets Protected
Many people believe that once a gift or inheritance is received during a marriage, it automatically becomes marital property. That’s not always true. Illinois law under 750 ILCS 5/503(a)(1) clearly recognizes that property acquired by gift, legacy, or descent remains the sole property of the spouse who received it.
For example, if your aunt left you an inheritance in your name only, that inheritance remains your non-marital property, even if it was received during the marriage. However, problems arise when non-marital assets are deposited into a joint bank account or used to buy marital property, such as a home owned by both spouses. This act, known as commingling, can transform non-marital property into marital property if the funds become indistinguishable. To preserve your claim, it’s critical to maintain clear records showing how those funds were used and that they remained separate.
Prenuptial And Postnuptial Agreements Under Illinois Law
Another way to define non-marital property is through a valid prenuptial or postnuptial agreement. Under 750 ILCS 10/1, the Illinois Uniform Premarital Agreement Act allows couples to decide in advance how their property will be treated in the event of divorce.
When properly drafted, these agreements can explicitly protect certain assets, such as business interests, real estate, or family inheritances. Courts in Illinois generally uphold these agreements as long as they are voluntarily executed, fully disclosed, and not unconscionable. I often advise clients with significant premarital assets or family businesses to consider these agreements to avoid confusion or disputes later.
Property Acquired Before Marriage Or After Separation
According to 750 ILCS 5/503(a)(6), property acquired before the marriage or after a legal separation remains non-marital. For instance, if you purchased a vehicle or owned a retirement account prior to the marriage, those assets are typically considered yours alone. Similarly, assets acquired after a judgment of legal separation are not considered marital.
However, appreciation in value can complicate things. If marital efforts—such as one spouse’s work or investment management—cause the value of a non-marital asset to increase, that appreciation might be subject to division. Courts will look carefully at whether marital funds or labor contributed to the asset’s growth.
Tracing Non-Marital Assets
When determining whether an asset is truly non-marital, the burden of proof rests with the spouse claiming the exemption. This process is known as tracing. To prove that property is non-marital, I must show a clear link between the original non-marital asset and its current form.
For example, if you sold a piece of land you owned before marriage and used the proceeds to purchase a rental property in your name alone, I would need to provide records showing that direct connection. The more documentation you can provide, such as bank statements, deeds, closing records, the stronger your claim. Failure to trace the source of funds can result in the court deeming the asset marital.
Common Misconceptions About Non-Marital Property
A frequent misunderstanding arises when one spouse’s name appears on a title or account. Many assume that if both names are listed, the property is marital. That’s not always the case. In Illinois, the intent behind the transfer matters. If the asset was placed in both names for convenience or estate-planning purposes but not as a gift, it may still retain its non-marital character.
Another misconception involves income from non-marital property. If that income is kept separate, it remains non-marital. But if it’s used for marital expenses or deposited into a joint account, it may lose its separate status. The details of how funds are handled often determine the outcome in court.
How I Help Clients Protect Their Non-Marital Property
As a divorce attorney serving Schaumburg and greater Chicago, I work to ensure that clients retain what is rightfully theirs under Illinois law. I examine every detail of their financial history, help identify commingling issues, and present clear evidence to the court showing the origin of assets. Protecting your non-marital property often requires proactive steps early in the divorce process. The sooner you involve a qualified attorney, the better your chances of preserving your financial security.
Frequently Asked Questions About Non-Marital Property In Illinois
What Happens If Non-Marital Property Was Placed In Both Spouses’ Names?
When non-marital property is retitled into joint ownership, the court may view it as a gift to the marital estate. However, if clear evidence shows it was not intended as a gift, it may still be classified as non-marital. Thisoften depends on documentation and testimony regarding intent at the time of transfer. A divorce attorney in Schaumburg can help present the necessary evidence to maintain the asset’s separate status.
Can My Spouse Claim Part Of My Inheritance In A Divorce?
Under 750 ILCS 5/503(a)(1), an inheritance is non-marital property if kept separate. However, if the inheritance is commingled—such as being deposited into a joint account or used to improve marital property—it may become marital. Keeping inheritance funds in a separate account under your name only is the best way to preserve their classification.
What If My Business Existed Before The Marriage But Grew During It?
The business itself is typically non-marital if founded before marriage. However, any increase in value during the marriage that resulted from either spouse’s personal efforts or the use of marital funds could be subject to division. Courts carefully evaluate contributions and may award the other spouse a share of the appreciation.
Are Retirement Accounts Considered Non-Marital Property?
Retirement funds accumulated before marriage are non-marital, while funds contributed during marriage are marital. The division is based on the portion accrued during the marriage period, calculated using the coverture formula. Detailed financial records are essential to make this distinction clear.
How Can I Prove That Property Is Non-Marital?
You must show a clear, documented connection between the original non-marital source and the asset in its current form. Bank records, closing statements, titles, and other documentation are critical in tracing. Without proof, the court will presume the property is marital under 750 ILCS 5/503(b).
Can My Spouse Take Half Of My Non-Marital Property?
No. Illinois courts only divide marital property equitably. Non-marital property remains the sole possession of the spouse who owns it. However, disputes often arise about classification, so having an attorney familiar with Illinois divorce law is key to protecting your rights.
Protecting Your Financial Future With Skilled Divorce Counsel
If you are going through a divorce and are uncertain about what property belongs to you, I can help you understand and assert your rights under Illinois law. Property division can shape your financial future for years to come, and it’s critical to ensure that your non-marital assets remain protected.
Contact our Chicago divorce attorney at the Law Office of Fedor by calling (847) 241-1299 to schedule a consultation. Our office represents clients throughout Schaumburg and the greater Chicago area, providing trusted guidance through every stage of divorce proceedings.
Law Office of Fedor Kozlov, P.C. – Protecting What Matters Most To You.
