Illinois law requires that all marital property in a divorce be divided equitably between the parties. Before you can determine what sort of property division proposal is reasonable given the circumstances of your case, you first must classify all property owned by either spouse as marital property or separate property. This distinction is important because only marital property is subject to division in a divorce.
Defining Marital Property
As a general rule, marital property includes all property obtained by either spouse during the marriage, no matter how that property is titled or purchased. If a spouse acquires property during the parties’ marriage, there is a presumption that the property constitutes marital property, with a few exceptions. For instance, a gift that another person gives to one spouse usually takes the form of separate property. However, a dispute may arise as to whether the person gave the gift to one spouse, or jointly to both spouses.
The resolution of this type of dispute determines whether the gift is marital or separate property. Another area of dispute is property that one spouse purchases just before the marriage, such as real estate, which the spouse may have purchased in anticipation of the marriage. If this is the case, then the real estate may qualify as marital property, despite the fact that one spouse technically purchased it prior to the marriage.
Defining Separate or Non-Marital Property
Separate or non-marital property includes property that one spouse acquired as a gift or an inheritance, as well as property that one spouse owned prior to the marriage. Any property that a spouse acquires after a court grants a legal separation or after a lengthy but informal separation is also likely to count as separate property. Additionally, property that a spouse exchanged for property that he or she acquired before the marriage or as a gift or inheritance also is separate property.
For example, if a husband owned a home prior to the marriage, but sold that home during the marriage and put the proceeds in a bank account separate from all other funds, then the contents of the account, or the proceeds of the sale of the home, typically would qualify as non-marital property.
However, this example is not always so clear-cut. Suppose the husband took the proceeds from the sale and used it to jointly purchase a home with his wife, and both spouses contributed to the mortgage payments, property taxes, and insurance premiums for the house thereafter. In this case, the proceeds of the sale, or the newly purchased home, may be commingled with marital assets, thus potentially taking on the character of marital property.
Call Your Dedicated Illinois Divorce Lawyers Today
Divorce is a stressful time for all parties involved, and disputes over property can only add to the parties’ emotions and high stress levels. If you are in this situation, you will need the assistance that only an experienced DuPage County divorce attorney can offer you. We will inventory your assets and property, classify it as marital or separate property, and propose a property division that is both appropriate under Illinois law and meets with your wishes.
Momkus LLC is here to provide you with knowledgeable advice concerning all of your questions about divorce, whether they pertain to property or issues related to your children. Contact our office today at 630-434-0400 and set up a consultation with an experienced Illinois divorce lawyer today.