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How Do Illinois Courts Address Marital and Non-Marital Property?

 Posted on March 24, 2021 in Illinois Divorce

St. Charles family law attorney property division

When a couple is going through a divorce, property and asset division is often one of the most important concerns. It can also be a very difficult one, especially if the couple has amassed significant assets and/or property during their marriage. The first step your divorce attorney will take is assessing what should be deemed marital property and what should be deemed nonmarital property. While this may seem fairly straightforward, it is not uncommon for spouses to disagree on what is and is not marital property.

Marital Property Versus Premarital Property

Under Illinois divorce law, property that is acquired and owned during the marriage is considered marital property. However, property that you acquired and owned prior to marriage is considered your premarital property. This property is not considered part of the divorce and should be immediately transferred to the person who originally owned the property. There is one caveat, however, and that is if there was an increase in the value of the premarital property during the marriage, that increase may then be considered a marital possession.

For example, in a situation where one spouse owned a condo before the couple was married, and instead of selling it, that spouse decided to rent out the condo. That rental income is considered marital assets and would be divided between the two spouses. The condo itself, however, would not be part of the marital estate and not subject to any division of property.

Consider the same scenario, however, if the couple decided to use the marital income to upgrade that condo. The value of the property improvements is considered marital property. So that added value then becomes part of the marital estate and the spouse who does not own the condo could demand a larger portion of other marital property in order to be compensated for the condo improvements.

Marital Property Versus Gifts

In Illinois, the court also makes exceptions for gifts during the marriage. Any gift that was given specifically to you during your marriage is considered your separate property. These items may include:

  • Property received as an inheritance or gift

  • Property received as an exchange for property owned prior to marriage

  • Property given to you by the court in a legal separation

  • Property excluded by a premarital or postmarital agreement

  • Property previously awarded to you in a court order

This nonmarital property should be immediately transferred to the owning party at the time of separation and should not be considered part of the marital property to be divided during a divorce.

Marital Property

Once the marital property has been separated from the nonmarital property and other gifts, the court may then distribute the property equitably among both parties. In doing so, the court will consider specific factors, including:

  • The contributions of each party during the marriage

  • The valuation of the property given to each party

  • The length of the marriage

  • The consequences to both parties due to the division of property

  • Obligations the parties may have due to a prior divorce

  • Premarital and postmarital agreements

  • The needs of the parties, including medical, emotional, and occupational

  • The custody arrangement for children

  • Spousal support awards

  • Future opportunities regarding income for the parties

  • The tax consequences of the property division

A Kane County Divorce Attorney Will Protect Your Rights

Understanding the consequences of property division is important when entering into a divorce in Illinois. Having an experienced St. Charles divorce lawyer advocating for you will ensure you receive a fair and just divorce settlement. Call Weiler & Associates, Inc. today at 630-331-9110 to schedule a confidential consultation with a member of our skilled legal team.


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