Non-Marital Property in Illinois

Property division is an important yet complicated process. To know what property is separate from the marriage and how those assets could become part of the marital estate, read on.

Defining Separate Property in Illinois

Marital property is any asset or debt that is part of the marital estate. Marital property is split in the property division phase of a divorce. So, separate property (aka non-marital property) is anything that gets excluded from the property division process. Under Illinois law, non-marital property includes the following:

• Property acquired before the marriage;
• Property acquired by gift, legacy, or descent;
• Property awarded by judgment to a spouse from the other;
• Property acquired by a spouse after legal separation;
• Property gained in exchange of a non-marital asset;
• The increase in value of a non-marital asset;
• Income from a non-marital asset; and
• Property excluded by valid agreement (such as a prenuptial agreement).^[1]

It is also important to understand that some forms of property may have both marital and non-marital aspects to them. For example, money put into a retirement account before the marriage may be a non-marital asset. However, the money put into the same account after the marriage is a marital asset.

Identifying Separate Property

It can be hard to identify whether an asset is still separate property or not. This is because the line of exactly when something becomes commingled is not clear. For the best understanding, speak with an attorney at Sterling Lawyers, LLC. Our attorneys know the specific judges in your county and how they tend to rule in different situations.

Protecting Non-Marital Property in an Illinois Divorce

A non-marital asset becomes commingled if it is shared by the spouses. If you are trying to ensure that non-marital assets remain separate, there are a couple things you can do.

1. Have a prenuptial or postnuptial agreement that protects assets while the agreement remains valid.
2. Maintain separate accounts for any investment accounts or funds you are trying to keep separate.
3. Place assets in a trust to protect them and keep them separate, like a separate account.
4. Keep thorough records of any shared accounts like credit cards, so you can prove who spent what.

Turning a Non-Marital Asset into a Marital Asset

If you want to come out of a divorce in a good financial situation, it is important to know how non-marital assets can become marital assets. A non-marital asset becomes commingled if it is shared between spouses or both spouses use an asset.

One example of how this could happen is if one party received an inheritance and put that money into a joint bank account. Because it was put into a shared account, that money is a shared asset.

Money from an inheritance could also become commingled if it was used on a shared purchase such as for a vacation or a home. If the non-marital asset is used on marital property, then the person who put in the non-marital asset doesn’t have a larger claim of that asset.

Another example of property that can get commingled is a house that was bought before the marriage. If that house is the home the married couple lives in, then both parties are using it and it is commingled. If the house is used as a rental property and the other party never puts money towards it or helps run the rental, then you can argue it is still separate from the marriage.