What’s Mine is Yours: Non-Marital vs Marital Property


marital property



Unlike other states where property between divorcing spouses is divided equally (community property states), Illinois is an “equitable division” state, meaning that property is divided “equitably,” opposed to equally. The disposition of property is governed by Section 503 of the Illinois Marriage and Dissolution of Marriage Act (IMDMA). Under Illinois law, all property acquired by either spouse during a marriage is presumed to be marital proprty. This is true regardless of whose name the property is titled in or whose money was used to purchase the property. Non-marital property is any property acquired before the marriage or property acquired during the marriage by one spouse by way of gift, legacy, or descent. Under Section 503, the court will consider the following relevant factors when dividing marital property:

(1) The contribution of each party to the acquisition, preservation, or increase or decrease in value of the non-marital or marital property;

(2) The dissipation by each party of the non-marital or marital property;

(3) The value of the property assigned to each spouse;

(4) The duration of the marriage;

(5) The relevant economic circumstances of each spouse when the division of property is to become effective, including the desirability of awarding the family home, or the right to live therein for reasonable periods, to the spouse having custody of the children;

(6) Any obligations and rights arising from a prior marriage of either party;

(7) Any antenuptial agreement of the parties;

(8) The age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs to each of the parties;

(9) The custodial provisions for any children;

(10) Whether the apportionment is in lieu of or in addition to maintenance;

(11) The reasonable opportunity of each spouse for future acquisition of capital assets and income; and

(12) The tax consequences of the property division upon the respective economic circumstances of the parties.

In dividing assets during dissolution proceedings, a court will try to assign each spouse’s non-marital property to that spouse; however, there are different ways that non-marital property may lose its identity, transmuting the property into marital property. For example, one such way non-marital property may be transmuted into marital property is when one spouse receives a sum of money by way of inheritance, but then deposits the money into the couple’s joint checking account, which effectively co-mingles the non-marital inheritance funds with the couple’s marital funds.

At The Law Offices of Jonathan Merel, P.C. we have extensive experience in dividing property between spouses during a divorce. Property is deemed marital based upon a statutory standard and further division of assets is determined on a case-by-case basis. Our attorneys have the experience to ensure that our clients receive a favorable and appropriate outcome while dividing assets in a divorce.

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