During a divorce, all property acquired by either the husband or the wife before they got married is considered non-marital property. All property acquired after the marriage is considered marital property. The courts do not have authority over non-marital property, so one of the first things the court will have to do is figure out if they have any authority over the property in question. If the property is determined to be marital property, then the court must equitably divide that property.
Typical Examples of Marital Property:
- Bank, investment and brokerage accounts
- Pensions and retirement plans
- Homes, vacation homes
- Household furniture and furnishings
- Stock and stock options
- Business and partnership interests
It is the nature of the property, or how the title is held, that determines if something is marital property or non-marital property. Even though a retirement plan is in the name of only one spouse, it is accrued during the marriage, and both parties share a common ownership in that retirement plan.
If a court determines that property is marital, then they must decide how to ?equitably? divide the property. State laws on divorce differ on the meaning of equitable, and most states do not consider equitable to mean equal.
Illinois Law Defines Non-Marital Property As:
- Property acquired by gift, legacy, or decent
- Property acquired in exchange for property before the marriage or in exchange for property acquired by gift, legacy or descent
- Property acquired by a spouse after a judgment of legal separation
- Property excluded by valid agreement of the parties
- Any judgment or property obtained by judgment awarded to a spouse from the other spouse
- Property acquired before the marriage
- The increase in value of property acquired by a method listed above
- Income from the property acquired by a method listed above, if the income is not attributed to the personal effort of a spouse
Inheritance is an example of non-marital property. If one spouse inherits money, even during the marriage, and keeps it in a separate account, then that property will be considered non-marital. However, many actions taken by the owner of the non-marital property can transform it into marital property. The law regarding transformation is very complex. It is highly recommended that you seek specific legal advice from an experienced divorce attorney about non-marital property.
Dividing Marital Property
When dividing marital property, the courts will consider the following:
- The value of the property assigned to each spouse
- The duration of the marriage
- The economic circumstances of each spouse
- Any obligation and right arising from a prior marriage of either party
- Any post-nuptial agreement of the parties
- The age, health, occupation, amount and source of income, vocational skills, marketable skills, estate, liabilities, and need of each of the parties
- The custodial needs of any children
It is important that you hire an attorney who is familiar with Illinois law and how your particular court normally handles property distribution. This will help you resolve the very complicated issue of property division.