Difference Between Marital Property & Separate Property in Illinois
If you’re going through a divorce in Illinois, there are two types of property you need to know about: marital property and separate property.
- Marital property is defined as property from the date of the marriage to the date of the divorce. Marital property will be divided between the spouses during divorce, usually 50/50 in Illinois.
- Separate or non-marital property is property that predated the marriage, or was acquired via a gift or inheritance before or during the marriage. Separate property will not be divided on divorce; instead, it remains with the spouse who owns it.
In the context of divorce, “property” refers to real estate, vehicles, investments, bank accounts, wages, pensions, valuable artwork or collectibles – basically, all assets, earnings, and property.
Unfortunately, many divorcing spouses disagree about what’s marital and what’s non-marital property – especially when it comes to property earned or purchased decades ago. It can be difficult to produce receipts with one spouse’s name, the amount, and date of purchase to prove that an item is really separate property.
You can also have a situation where property is partly separate and partly marital. For example, let’s say the wife started earning a pension before she got married; the portion that pre-dates the marriage is non-marital, and it will not be part of the division of assets. She continues earning that pension during her 25-year marriage; now that she’s getting a divorce, we will have to calculate the value of the separate portion of her pension, which will have increased over the years.
There’s a lot of debate, arguments, and hearings about the issue of what’s separate property and what’s marital property; sometimes it’s cut-and-dried, and sometimes it’s not. For example, Sarah has a non-marital account – $100,000 she inherited from her Great Aunt Martha – and she put $75,000 of that $100,000 into the marital home: for renovations, or to build a pool, or to make structural repairs to their 100-year-old home. Sarah has now “co-mingled” that $75,000, and it is no longer non-marital funds; she can only claim the $25,000 of her inheritance that is still in the bank as her separate property now that she’s getting a divorce.
Like Sarah, you probably didn’t enter into marriage thinking that you would get divorced someday, so you didn’t keep track of every non-marital dollar you spent. When you sold your baseball card collection to take your family on a dream vacation, you probably weren’t thinking, “If I get divorced, what will this mean for marital division of property?”
Identifying what is marital and what is separate property can be a very complicated issue during discovery; you need a knowledgeable, skilled property division attorney who has handled many cases involving complex financial situations to help ensure that you get to keep your separate property free and clear, and that you receive an equitable share of your marital estate.
Equitable Division of Marital Property in Illinois
The factors a judge would consider when dividing marital property include:
- the length of the marriage (from the date of the marriage to the date of the divorce);
- when the property was acquired;
- how the property was acquired;
- the value of the marital and separate property;
- if one spouse has a substantially more separate property than the other – such as a trust or inheritance from their parents;
- the ability of a stay-at-home spouse without separate property to rehabilitate themselves financially and acquire sufficient income and assets to fund a reasonable standard of living
- if the wealthy spouse doesn’t have the liquid assets to pay spousal maintenance – in which case the judge might award a greater portion of marital property to the other spouse;
- whether there is a valid prenuptial or postnuptial agreement stating that certain property will be excluding from division.
Illinois is a fact-pleading state, so the judge needs all the relevant facts to know on which side of the ledger of to place each item. If there’s a dispute as to the valuation of an item – perhaps for the marital home or a vacation home – the judge might choose an appraiser to provide the value.
If there’s a dispute regarding property division, it’s best to try to settle it out of court. If you cannot settle, there’ll be a hearing or a trial and the judge will make the decisions for you. The judge doesn’t know you, but the decisions they make will affect the rest of your life.
The team at Fikaris and Associates will work hard to achieve an out-of-court settlement that works for all parties concerned. If your case goes to trial, however, we will bring in financial experts to provide strong evidence to support your claims for an equitable property division. Proudly serving Dupage, Cook, and Will Counties, family lawyer Dheanna Fikaris will protect your rights to both marital and separate property, and she will let you know what’s worth fighting for – and what isn’t. Contact our Oakbrook Terrace offices today to discover how we can work to obtain the best possible property settlement for you.