In a divorce, all aspects of a couple’s life must be divided, including the property that has been accumulated throughout the marriage. All of the assets and debts acquired during the marriage must be identified, valued, and divided before a divorce may be final. However, some property may not be subject to division if it is nonmarital. Generally, each spouse is able to keep his or her nonmarital property.
What is Non-Marital Property?Illinois law provides that property a spouse acquired before a marriage is non-marital property. This may include vehicles, homes, boats, or other types of property. Additionally, property that has been gifted to one of the spouses during the marriage may be deemed non-marital property. The same rule applies to inherited property. Therefore, if one of the spouses is gifted or inherits a large sum of money from a relative, generally, courts will rule that it is non-marital property.
What is Marital Property?Marital property is essentially any property—aside from non-marital property—that is acquired during the marriage. Marital property includes assets, as well as debts. So, while the homes, vehicles, and other such assets that the couple has acquired must be divided in a divorce, credit card debt, student loans, and other debts must be as well. Marital property includes all property that is purchased until the divorce is finalized—so items purchased after the parties no longer live together could arguably be labeled as marital property, as long as it is kept separate from, and not commingled with, marital money.
When Non-Marital Property Becomes Marital PropertyProperty matters in a divorce are not black and white. In some cases, it is possible for property that is non-marital to become marital property. This is known as transmutation. For example, say one spouse inherits $100,000 from a relative. The inheritance is non-marital property. However, the money is deposited into a joint account that both spouses use for a variety of expenses. It becomes difficult to determine which cash in the account is marital and which is non-marital—therefore, many judges would rule that the inheritance has become marital property. The same argument may be used for other types of property as well. For example, one spouse owns a home before the marriage. The home is non-marital property. However, throughout the marriage, the other spouse puts a lot of money into the home for repairs, improvements, and maintenance. It would be fair for this spouse to receive a portion of the marital estate in the divorce that reflects these contributions. Furthermore, if the spouse who owned the non-marital real estate added the other spouse's name to the deed, transmutation (a change to marital property) would generally deem to have occurred.
Dividing Marital PropertyOnce all of the marital and non-marital property has been identified and valued in a divorce, it must be equitably distributed between the spouses. Equitably does not mean equally; it simply means that the property must be divided fairly. When property issues are before a judge, the following factors are considered in determining what property goes to what spouse:
- How long the parties were married
- Whether alimony has been awarded to one spouse
- The health and age of the parties
- The financial position of each spouse
- The custody arrangements for any children
- The occupation, work history, and employability of the spouses
- The individual needs of each spouse
- Any obligations the spouses may have from previous marriages, including alimony or child support payments
- Whether the parties signed a prenuptial agreement before the marriage
- The amount of property each spouse is receiving in the divorce
- Each spouse’s individual opportunities for obtaining income and assets in the future
- Each spouse’s contributions to improving the value of marital property (including whether one spouse did not work to care for the home and children)
- Whether either spouse committed any act that hurt the value of any marital property
- Tax consequences