What Money Cannot Be Touched In A Divorce In Illinois?
As an Illinois divorce attorney, I am often asked what types of assets are protected during a divorce. Divorce can feel overwhelming, especially when emotions are tied to years of financial effort and sacrifice. Many clients worry about losing everything they have worked for. The good news is that Illinois law recognizes that not all assets are considered “marital property.” Certain types of money and assets remain separate and cannot be divided during divorce proceedings. Understanding which funds are protected can make a major difference when preparing for property division under Illinois law.
Understanding Marital Versus Non-Marital Property
Under the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/503), property is divided into two main categories: marital and non-marital. Marital property includes most assets acquired during the marriage, regardless of whose name appears on the title. However, non-marital property, often called separate property, belongs solely to one spouse and is generally protected from division.
The court begins with the presumption that all property acquired during the marriage is marital. The spouse claiming that something is non-marital bears the burden of proving that it falls under one of the statutory exceptions outlined in 750 ILCS 5/503(a).
Inherited Assets Are Typically Protected
Money or assets received through inheritance are considered non-marital property, even if the inheritance was received during the marriage. According to 750 ILCS 5/503(a)(1), property acquired by gift, legacy, or descent is excluded from marital property. However, inherited assets can lose their protection if they are commingled with marital funds—for example, if inherited money is deposited into a joint bank account and used for household expenses. To keep inheritance protected, it must be kept separate and well-documented.
Gifts Are Considered Non-Marital Property
Similar to inheritance, gifts received by one spouse are classified as non-marital property under 750 ILCS 5/503(a)(1). This includes monetary gifts or valuable items such as jewelry or vehicles. However, the source of the gift matters. A gift from a third party, such as a parent or friend, is considered non-marital, while a gift from the other spouse is typically marital. The key factor is intent—whether the donor intended the item to belong solely to one spouse.
Property Acquired Before Marriage Remains Separate
Assets that were owned prior to the marriage remain the property of the original owner. Under 750 ILCS 5/503(a)(6), property acquired before the marriage is protected from division. This includes savings accounts, investments, or real estate purchased before the wedding. Like inheritance and gifts, however, commingling can change the property’s classification. If pre-marital funds are mixed with marital money or used for joint expenses, the court may determine that they became marital property.
Personal Injury Awards And Lawsuit Settlements
Compensation from personal injury settlements can be either marital or non-marital, depending on the purpose of the award. Under 750 ILCS 5/503(a)(5), compensation for pain and suffering or future lost wages is considered non-marital. However, compensation for lost earnings during the marriage or medical expenses paid with marital funds may be marital. Courts often examine the nature of the award carefully, which makes documentation critical.
Property Acquired After Legal Separation
Once a couple is legally separated, property acquired afterward is generally classified as non-marital under 750 ILCS 5/503(a)(7). A legal separation provides financial protection while divorce proceedings are pending and can help prevent disputes over newly earned income or acquired assets.
Retirement Accounts And Pensions
Retirement benefits are often among the most complex assets in divorce. Generally, contributions and growth that occurred during the marriage are considered marital property, while any funds accumulated before the marriage are separate. Under 750 ILCS 5/503(b)(2), courts may use a Qualified Domestic Relations Order (QDRO) to divide the marital portion of retirement accounts. Proper documentation of pre-marital balances is essential to preserve what is non-marital.
Avoiding Commingling Of Non-Marital Property
The most common way to lose separate property protection is through commingling. When non-marital assets are mixed with marital funds to the point that they cannot be easily distinguished, they may be reclassified as marital property under 750 ILCS 5/503(c). Maintaining separate accounts, keeping detailed records, and avoiding the use of non-marital funds for marital expenses can help preserve ownership.
Protecting Non-Marital Property Through Documentation
Courts rely heavily on evidence when determining whether an asset is marital or non-marital. Bank statements, property deeds, gift letters, and inheritance documentation can be invaluable. Without proper proof, even legitimate non-marital assets may be subject to division. An attorney can help prepare the necessary evidence and ensure that the correct arguments are presented in court.
Why Legal Guidance Matters
Divorce law in Illinois is fact-specific. Every financial situation is unique, and the classification of property can significantly affect the outcome of a case. As an attorney, I help clients identify protected assets, prevent accidental commingling, and present clear documentation to the court. By planning carefully and understanding how the law applies, it is possible to preserve what legally belongs to one spouse.
FAQs: Which Assets Stay Protected in an Illinois Divorce?
What Qualifies As Non-Marital Property In Illinois?
Non-marital property includes assets acquired before marriage, gifts, inheritances, and compensation for personal injuries that are intended for pain and suffering or future losses. Property acquired after a legal separation is also considered non-marital under Illinois law.
Can A Spouse Claim Part Of An Inheritance In A Divorce?
Generally, no. Inheritances are protected as non-marital property under 750 ILCS 5/503(a)(1). However, if inherited funds are mixed with joint assets or used for shared expenses, they may lose their protection and become marital property.
Are Retirement Accounts Divided During Divorce?
Yes, but only the portion earned during the marriage is typically subject to division. Pre-marital contributions and their passive growth remain separate property. Documentation of account balances before marriage helps ensure proper classification.
Can Non-Marital Property Become Marital?
Yes. When non-marital property is commingled with marital funds, such as depositing an inheritance into a joint bank account, it may lose its separate status. Courts will consider whether the property can be traced back to a non-marital source.
Is Income From Separate Property Considered Marital?
In most cases, income generated from non-marital assets during the marriage—such as interest or dividends—may be classified as marital property unless a valid agreement states otherwise. A prenuptial or postnuptial agreement can clarify ownership.
How Does The Court Handle Property That Cannot Be Easily Traced?
If non-marital assets are mixed in a way that makes it impossible to identify their source, the court may treat them as marital under 750 ILCS 5/503(c). Maintaining clear financial records is essential for preserving non-marital status.
Can Spouses Protect Separate Property Before Divorce?
Yes. Keeping non-marital assets in individual accounts, avoiding commingling, and maintaining documentation of ownership can help preserve them. Legal separation may also protect newly acquired property during the divorce process.
Do Gifts Between Spouses Count As Non-Marital Property?
Typically no. Gifts exchanged between spouses are considered marital property unless there is clear evidence showing that the giver intended the gift to remain separate. The burden of proof rests on the spouse claiming non-marital ownership.
Can The Court Divide Debt The Same Way It Divides Property?
Yes. Debt is subject to equitable division under 750 ILCS 5/503, just like property. Marital debts are typically divided based on fairness, while personal debts incurred before the marriage usually remain the responsibility of the original debtor.
Why Is Legal Representation Important In Protecting Non-Marital Assets?
Property division can be complex, especially when commingling has occurred. An attorney can identify which assets are protected under Illinois law, gather evidence, and advocate for accurate classification to prevent unnecessary losses.
Call The Law Office Of Fedor Kozlov Today
At the Law Office of Fedor Kozlov, protecting financial interests during divorce is a priority. Non-marital property deserves protection under Illinois law, and careful legal strategy can ensure that it stays that way. The firm represents clients throughout Schaumburg and the greater Chicago area with precision, preparation, and dedication to achieving fair outcomes.
Contact our Chicago divorce attorney at the Law Office of Fedor by calling (847) 241-1299 to schedule a consultation. The Law Office of Fedor Kozlov helps individuals understand their financial rights, protect non-marital property, and move forward with confidence under Illinois law.
