Defining Non-marital Property: What Is Non-marital Property in Illinois?
In Illinois, property that is acquired before a marriage occurs is considered non-marital property. Non-marital property also encompasses any debts or other obligations that existed before the marriage took place.
The assets and liabilities that fall under non-marital property can be broad and will differ depending on the circumstances each couple faces. However, assets described as non-marital property can often include investment properties, retirement accounts, and loans that were established before the marriage occurred.
In the event of a divorce, non-marital property is not subject to equitable distribution. Instead, it will continue to belong to the person who owned it before the marriage took place. According to Illinois Law (750 ILCS 5/503), the following is categorized as non-marital property:
- Property a spouse acquires as a gift, legacy, or descent.
- Property a spouse acquires in exchange for property acquired before the marriage or by gift, legacy, or descent.
- Property a spouse acquired after a judgment of legal separation.
- Property that is excluded from the marital estate by valid agreement of the parties. This is often detailed in a prenuptial agreement.
- Any judgment or property obtained by judgment and awarded to one spouse from the other.
- Property acquired by a spouse before the marriage took place.
- The increase in value of the non-marital property, irrespective of whether the increase results from a contribution of marital property, non-marital property, the personal effort of a spouse, or otherwise, subject to the right of reimbursement.
- Income from any of these types of non-marital property, if the income is not attributable to the personal effort of a spouse.
While many states follow community property laws in which marital property is expected to be divided 50/50, Illinois does not hold that expectation. Illinois is classified as an equal distribution state, meaning that marital property acquired through marriage is distributed in a manner that is “just” and considers “all relevant factors.”
Presumptions of Marital Property
In Illinois, several types of assets are presumed to be marital property after a marriage takes place. These assets include everything from a pension plan to stock options to an IRA. Depending on how and when these assets were created, they may or may not be distinguished as non-marital property. One spouse has to make a clear case that the property belongs to them solely in order to claim non-marital property rights over them.
In many instances, couples may unknowingly or unintentionally blur the lines between what is a marital asset and what is not a marital asset. For example, if one spouse moves a sum of money like an inheritance into a joint account that they share with their spouse, this may change the distinction of whether that sum of money is marital or non-marital property.
Property Acquired In Contemplation of Marriage
Illinois Law specifically addresses property that was acquired “in contemplation of marriage.” This type of property can often be described as furniture, vehicles, or other items that were purchased in preparation for the marriage. According to Illinois law, property that is acquired “prior to a marriage that would otherwise be non-marital property shall not be deemed to be marital property solely because the property was acquired in contemplation of marriage.”
Prenuptial and Postnuptial Agreements
Pre and post-nuptial agreements can help clarify property distribution in the event of a divorce. Whether the agreement takes place before the marriage or during the marriage, it allows both parties to detail what is and is not non-marital property. These types of agreements can help simplify divorce proceedings while saving time and money spent on the divorce.
Seeking Out Legal Guidance
Even in best-case scenarios, divorces can be difficult experiences to work through. Having an experienced attorney on your side will not only give you the advantage of having sound advice, but it can help you detangle issues relating to the division of property. At the law firm of Johnson, Westra, Broecker, Whittaker & Newitt, our experienced and dedicated family law attorneys can fight for your rights when it comes to the division of property. Reach out today to speak with someone about your case.