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Differentiating Between Martial and Separate Property During an Illinois Divorce

Posted on in Division of Assets

DuPage County asset division lawyerOne of the most challenging aspects of a divorce can often be determining how property will be divided. Illinois law dictates that only marital, or shared, property should be divided during a divorce and that non-marital, or separate, property is not. However, it can be hard to determine what property is considered marital and what property is considered separate.

Untangling two individuals’ finances and assets during divorce can be a complicated endeavor – especially if the couple is not able or willing to negotiate. In some situations, property decisions are left up to the judge assigned to the case. The judge will then use a method of property division called “equitable distribution” in order to assign property to each spouse.

What Is Considered Non-Marital Property?

Separate property is not subject to equitable division and will be assigned to the spouse who owns it during divorce. Separate property generally includes:

  • Property acquired before the marriage began;
  • Property gained by either spouse after the dissolution of marriage began, in most cases;
  • Property obtained through legacy, gift, or descent; and
  • Property excluded from division by agreement by both parties (such as a prenuptial agreement).

What Is Considered Martial or Shared Property?

Marital property generally includes any assets acquired by either spouse during the course of the marriage. However, certain gifts, inheritances, and passive income acquired during the marriage may still be considered separate property. One of the greatest misunderstandings about separate and marital property is involves comingled funds. When spouses mix separate property with martial property, the entire asset or account may be considered marital property for the purposes of asset division during divorce.

For example, if a wife inherits money from a deceased relative during the marriage, this is likely separate property. However, if she deposits the inheritance into a bank account shared with her spouse and uses the money for normal household purposes, the funds become marital property and are subject to division. Similarly, if a husband owns a home before getting married, the home is considered his property. If he pays the mortgage using funds from a joint bank account, however, the house may be considered martial property.

Does Illinois Split Shared Property 50-50?

Illinois differs from other states with regard to property division during divorce. Illinois courts use a method of property division called equitable distribution to determine a fair and reasonable allocation of property and debt. Property might not be split exactly evenly during an Illinois divorce. The employability and health of each spouse, spousal maintenance and child support decisions, and several other factors are taken into consideration by Illinois courts during property distribution decisions.

Contact a DuPage County Divorce Attorney

Call the experienced Oak Brook family law attorneys at Pesce Law Group, P.C. to learn more about your options during an Illinois divorce. Call 630-352-2240 to schedule your free consultation today.



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