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Understanding Types of Property in Illinois Divorce

property division, marital property, separate property, nonmarital property, Illinois divorce lawyer

According to survey information, over two million people in the United States get married every year. As two households are merged into one, spouses often share a home, automobiles, income, and other property. Illinois law characterizes property as either non-marital property or marital property. Although the question of whether someone's property is considered marital property or not is usually only pertinent when the property is divided—such as upon death or divorce—individuals and couples may benefit from understanding how courts are likely to characterize their possessions.

Non-Marital Property

According to Illinois law, non-marital property may include:

  • Real and personal property acquired by either spouse before marriage. This may include such items as a home, a business, a vehicle, furniture, jewelry, or the like.
  • Property acquired during the marriage by gift from a third party. This may include a gift from a friend or family member (e.g., parents, siblings, etc.), an inheritance, a bequest, or the like.
  • Property acquired during marriage from the proceeds of the sale of non-marital property. For example, if a spouse owns a vehicle before marriage, and sells the vehicle after marriage, the proceeds of the sale may be characterized as that spouse's non-marital property, provided that the proceeds are maintained separately (e.g., in a separate bank account). Note that any income generated from non-marital property due to the active efforts of either spouse may be considered marital property. Thus, income from a non-marital business (a business owned by a spouse before marriage) may be considered marital property.

Marital Property

According to state law, marital property often includes:

  • All property acquired by either spouse that is not non-marital property (e.g., that was not acquired by either spouse before marriage); and
  • Property whose title is held by both spouses. For example, a vehicle may be considered marital property when the title to the vehicle names both spouses.

Pensions

Pensions are considered both non-marital property to the extent any portion was earned before the marriage and marital property to the extent any portion was earned during the marriage.

Changing Property from One Type to Another

Non-marital property may become marital property in a number of ways, including when the property is commingled with marital property in a manner that makes it difficult to trace back to the source of the property, such as when otherwise non-marital funds are placed in a jointly held bank account.

If you are considering marriage or divorce, and have questions about how your property may be characterized by a court of law, please reach out to the divorce attorneys at Mirabella, Kincaid, Frederick & Mirabella, LLC. Contact us today to see how we can help in your situation.

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