Marital vs. Non-Marital Property in an Illinois Divorce

Marital Property 

A contention point in most divorce cases is determining what is marital property and what is non-marital property. Marital property can be divided during a divorce proceeding. 750 ILCS 5/503 states that marital property is all property, including debts and liabilities that were acquired by either spouse during the marriage. Even if a spouse’s name is not on a title or deed, it can still be marital property if marital funds were used. Retirement accounts such as pensions, 401(k), 403(b), and IRA’s are deemed marital property even though they belong to one spouse only.

Other examples of marital property include: the marital home, vehicles, and bank accounts. Illinois courts divide marital property equitably, which does not always translate to an equal 50/50 split. There is a presumption of marital property for anything acquired after the date of marriage that must be refuted by clear and convincing evidence from the statutory provisions of non-marital property.

Non-Marital Property

In simpler terms, non-marital property is anything acquired before marriage, gifted to one spouse only, or bequeathed to one spouse via inheritance. Non-marital property generally is not subject to division in an Illinois Divorce. There are certain caveats to this such as if the non-marital asset was commingled with marital assets or put in your spouse’s name. The non-marital property has to retain its identity throughout the marriage. Often times, during a marriage, non-marital property can be transmuted into marital property. This is why it is imperative to obtain a Family Law Attorney to assist you in determining what is marital property and what is not.

Yours, Mine, or Ours?

Do not think that because you or your spouse filed a petition for dissolution that means that starts the clock on non-marital property. Pending a case for dissolution of marriage, you are still legally married. That means anything you acquire during the dissolution proceedings can be deemed marital property. Until a judgment is entered, you are still legally married. Contact Villadonga & Villadonga today at 847-298-5740 to learn more how we can help you with your Illinois divorce and division of marital and non-marital property.

*Nothing contained herein is legal advice or meant to establish an attorney-client relationship. This is a general synopsis of law and is by no means a full description of the legal process or outcomes.