Differentiating Between Separate Property and Marital Property During an Illinois Divorce

 Posted on August 15, 2019 in Main

Although we usually think of marriage as a romantic union, it is also a financial union. When a couple marries, they combine their property, expenses, and debts. Undoing this financial fusion during divorce can quickly become complex. If you are getting divorced, you may have concerns about what property is rightfully yours and what belongs to your soon-to-be-ex-spouse. Read on to learn about how property is divided in an Illinois divorce and what to do if you need legal guidance during your split.

Illinois is an Equitable Distribution State

When a couple divorces, they have the option of making their own decisions about what property should go to which spouse. However, when divorcing spouses cannot agree to a property distribution arrangement, the court must intervene.

Unlike certain other states, Illinois does not simply split marital property in half and assign 50 percent of the value of the marital estate to each spouse. Instead, Illinois follows equitable distribution laws. According to equitable distribution, marital property is divided equitably, or fairly, depending on the spouses’ financial and life circumstances. Things like each spouse’s income, property, health, future earning capacity, and financial needs are taken into consideration. Before marital property can be divided, the court must determine what property is marital property and eligible for division and what property is separate property which is not divided.

Marital and Nonmarital Property

Generally, marital property includes any property, funds, debts, and assets accumulated by either spouse during the marriage. Nonmarital or separate property includes assets and debts which a spouse had before getting married. Certain gifts and inheritances are also considered separate property. While this seems straightforward, it can become quite complex. When property is commingled, or mixed, it can change the identity of the property.

For example, if a husband receives a large inheritance from a deceased parent, this is likely considered separate property. If he and his spouse divorced, he would not have to share the inheritance funds with his wife. However, if he used that money to purchase a family car, the inheritance funds are transmuted from separate property to marital property. Upon divorce, the value of the car would be divided between the two spouses.

Contact a DuPage County Divorce Lawyer

For help with a wide range of divorce issues, call the Wheaton property distribution attorneys at Mirabella, Kincaid, Frederick & Mirabella, LLC. Schedule an appointment by calling us at 630-665-7300 today.

Sources:

http://www.ilga.gov/legislation/ilcs/documents/075000050k503.htm

https://www.law.cornell.edu/wex/equitable_distribution