Non-Marital Property in Illinois
Non-marital property (or separate property) is property owned by only one party, not both. This means it is not divided in the property division process and not considered under equitable division. This includes assets gained before the marriage, as a gift, or from an inheritance.
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).
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 Hughes. 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.
- Have a prenuptial or postnuptial agreement that protects assets while the agreement remains valid.
- Maintain separate accounts for any investment accounts or funds you are trying to keep separate.
- Place assets in a trust to protect them and keep them separate, like a separate account.
- 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.
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Frequently Asked Questions
What is considered non-marital property in Illinois?
Non-marital property is anything excluded from the marital estate. Some common examples of non-marital property are inheritances, gifts, and premarital assets. However, as explained above, non-marital assets can become marital assets if they get commingled.
What happens to property owned before marriage in Illinois?
Property owned before the marriage usually stays with the party that gained it. If a party had a bunch of rare baseball cards from before the marriage, they would remain with that party.
However, if property gets commingled, then it may not stay with its original owner. For example, if one party bought a car before the marriage, but both parties used it and the party was still making payments on it during the marriage, it will probably be considered marital property.
Is a house owned before marriage marital property in Illinois?
A house owned before the marriage may become marital property. It becomes marital property in most cases because it became commingled when both parties lived in it. How long parties lived in the house together can determine whether it is considered marital property or not.
What happens if you are married and the house is not in your name in Illinois?
Even if the marital home is not in your name, it will still likely be considered marital property. It depends on the circumstances, but if both parties put money and effort into the house, they both deserve some of what it’s worth.
Is inheritance considered marital property in Illinois?
In a divorce, inheritance is not considered marital property if it was left to one party. If it was left to both parties, then it is marital property.
Or, if the inheritance is commingled, then it can become marital property. For example, if the inheritance was an amount of money and that money was put into a joint bank account, it becomes marital property.
How does separate property become marital property in Illinois?
Separate property becomes marital property if it gets commingled. Commingling happens when both parties use, share, or affect the property. If both parties use a house that was bought before the marriage, it will likely be considered marital property. Another example is a business, if both parties worked on the business even though one party started it before the marriage, it will likely be considered marital property.
What is non-matrimonial property?
Non-matrimonial property is another word for non-marital property. This is property that is owned by only one party, not both. Some examples of non-marital property are property that was owned before the marriage or property that is inherited by one party.