How is it determined which of our property is marital and which is separate?

Illinois divorce law divides all property into two categories: marital property and non-marital or separate property. Property is called non-marital property if you receive it in one of the three following ways:

1. it is property that you had from before the marriage;
2. it is property that you inherited;
3. it is property which someone gave to you as a gift.

Any increase in the value of non-marital property is also non-marital. For example, if you received five shares of AT&T stock from your father as a gift, and then the stock increased in value over the years, all of this would be your non-marital property.

Marital property is everything else that you have during the marriage. So if the property is not from before the marriage, not an inheritance, and not a gift, then it’s marital. Once you have identified all of your non-marital property, everything that remains is marital.

The difference between non-marital and marital property is important because courts handle them differently in divorce cases. In dividing property between the parties, the court first identifies each party’s non-marital property. The court then awards each party his or her non-marital property. Neither spouse can receive any part of the other parties’ non-marital property. Then the court will divide the marital property between the parties. Many courts will start at 50/50 and then change the percentage depending on a number of factors which the court is required to consider. One of the factors that the court takes into consideration when dividing the marital property is the amount of non-marital property awarded to each party. For example, if one party has $500,000 in non-marital property and the other party has none, the party without any non-marital property will probably receive more of the marital property. The end result may be a 55/45 or a 60/40 or 65/35 division of marital property.

If you have non-marital property, you must take care in separating it. You should maintain it in an account in your name alone. If you add your spouse’s name to the account or place the property in a joint account, there is a good chance that the property will become marital. Your divorce lawyer can explain steps which you should take in order to safeguard your non-marital property.

Jay A. Frank is a senior divorce practitioner with Aronberg Goldgehn in Chicago. He has been selected as one of the top family-law attorneys in Illinois. With more than 35 years of experience, he focuses his practice on all aspects of Illinois family law.