What is 'Marital Property' in Illinois?

Overview

Marital property refers to assets acquired during the marriage that are subject to division by the court. Non-marital property, on the other hand, is excluded from division and remains with the spouse who owns it. Illinois law provides clear guidelines for classifying and dividing property in a divorce.

Only Marital Property May Be Divided

Under Illinois law, only marital property can be divided in a divorce. The court must assign non-marital property to the spouse who owns it:

"...the court shall assign each spouse's non-marital property to that spouse. See 750 ILCS 5/503(d)

Marital property, by contrast, must be divided "in just proportions" by the court:

The court shall divide the marital property without regard to marital misconduct in just proportions. See 750 ILCS 5/503(d)

"Without regard to marital misconduct" means the Court is not allowed to consider whether or not a spouse cheated or was a 'good spouse' when deciding what exactly 'just proportions' should be.

How is Marital Property Defined?

The default rule is that property acquired by either party before the marriage remains their property individually. Property that was acquired during the marriage is presumed to be marital property:

"Marital property means all property, including debts and other obligations, acquired by either spouse subsequent to the marriage." See 750 ILCS 5/503(a)

A party can overcome this presumption presumption by clear and convincing evidence that the acquisition falls under one of the exceptions listed in the statute. These exceptions are considered non-marital property and include (but are not limited to):

• Property acquired before the marriage.
• Property acquired by gift, legacy, or descent.
• Property excluded via a valid agreement (e.g., prenuptial or postnuptial agreements).
• Property acquired after legal separation.

For the full list of exceptions, see 750 ILCS 5/503(a).

The presumption of marital property is overcome by showing through clear and convincing evidence that the property was acquired by a method listed in subsection (a). See 750 ILCS 5/503(b)

Determining Marital vs. Non-Marital Property

Step 1: Date of Acquisition

The date property is acquired is often the key factor in determining its classification. Property acquired before the marriage is typically non-marital. Conversely, property acquired during the marriage is presumed to be marital unless proven otherwise.

Step 2: Carving Out Non-Marital Property

Some property acquired during the marriage may still be classified as non-marital if it fits specific exceptions, such as inheritance or gifts. Evidence of the property's origin is often required to prove its non-marital character.

Step 3: Transmutation and Commingling

Non-marital property can become marital through transmutation, a process where property becomes marital because both spouses treat it as marital or share ownership rights or comingle it with marital property in such a way that it looses it's identy as non-marital property.

the placement of nonmarital property in joint tenancy or other form of joint ownership with a spouse 'will raise a presumption that a gift was made to the marital estate, and the property will become marital property.' See In re Marriage of Vondra, 2016 IL App (1st) 150793

Division of Marital Property

Once all assets are classified as marital or non-marital, the court divides the marital assets equitably, considering factors such as each spouse's contributions, needs, and the standard of living established during the marriage. Equitable does not always mean equal, but rather what is fair under the circumstances:

The touchstone of apportionment of marital property is whether the distribution is equitable. See In re Marriage of Jones, 543 NE 2d 119 - Ill: Appellate Court, 1st Dist. 1989.

Have a Question About Marital Property?

Determining whether property is marital or non-marital may seem straight forward, but If you need assistance navigating property division in an Illinois divorce, contact our firm to schedule a consultation with an experienced family law attorney.

For more information about property division in Illinois divorces, see 750 ILCS 5/503.