If you are planning on divorce in the near future, you should know that one central part of your divorce case will be the division of marital property. To be clear, when a couple goes through a divorce, the court will classify all existing assets and debts between the parties as either marital or separate property. According to the Illinois Marriage and Dissolution of Marriage Act (IMDMA), all separate property will be retained by the spouses and will not be subject to division, but all of the marital property—including assets and debts—will be divided according to the rule of “equitable distribution.” In other words, all marital property will be divided in a way that the court determines to be equitable or fair to both spouses. But how does the court decide what counts as marital property?
Definition of Marital Property Under Illinois Law
According to the IMDMA, marital property is a term that refers to “all property, including debts and other obligations, acquired by either spouse subsequent to the marriage.” However, there are some exceptions, and certain assets or debts acquired after the date of marriage can be classified as separate or non-marital property.
Generally speaking, you should start from the assumption that all property acquired after the date of your marriage will be classified as marital property and will be subject to division according to the terms of equitable distribution in your divorce case. Yet exceptions might apply, rendering certain property acquired after the date of marriage as “separate” or “non-marital” property.
Understanding What Classified as Separate Property
In determining what should be classified as marital property in Illinois, courts need to determine what should be classified as separate or non-marital property. According to the IMDMA, all of the following properties will count as separate or non-marital property, thereby rendering property outside of the following categories as marital property:
- Property acquired prior to the date of the marriage unless it has characteristics of both marital and non-marital property (i.e., property that has been commingled);
- Property acquired by a gift from a party other than the spouse during the marriage;
- Property acquired through inheritance during the marriage;
- Property acquired in exchange for a gift or inheritance acquired during the marriage;
- Property acquired in exchange for property the spouse owned before the marriage, even if the exchange occurred during the marriage;
- Property acquired by one of the spouses following a judgment of legal separation (even if the parties are still legally married);
- Property excluded from the classification of marital property through a valid premarital agreement; and
- Increase in value of the separate property even if it occurred during the marriage unless the increase in value occurred because of the contribution of the other spouse or the contribution of marital property.
Contact Our Illinois Divorce Lawyers
If you have questions or concerns about how property will be classified in your divorce case and how marital property will be divided, one of our dedicated divorce attorneys in Illinois can assist you. Contact Arami Law, Inc. to learn more about the classification and equitable distribution of marital property under Illinois law.