The Basics of Marital and Non-Marital Property

 Posted on February 25, 2016 in Asset Division

It has become a common trope in movies and music to portray a wealthy person getting married and subsequently divorced, losing half of his—usually the subject is a man—property to his ex-spouse, regardless of the fact that he owned most of the same assets at the time of the marriage. While such a cliché situation is technically possible under the law in some states, the reality in Illinois is generally much different.

Fair Does Not Always Mean Equal

Property division following a divorce in Illinois can be rather complicated, as the law requires marital assets to be divided according to what is equitable and just. While this could result in a clean 50/50 split, there is no guarantee. Rather the specific circumstances of the marriage, divorce, and expected post-divorce realities must be taken into account to determine the appropriate allocation of assets.

Yours, Mine, or Ours?

The other major point that television portrayals of divorce get tend to get wrong involves what property should and should not be subject to division. In Illinois, only assets that are considered to be part of the marital estate are to be included in the process, not just everything owned by either spouse. The law provides that marital property is any property acquired by either spouse during the course of the marriage with very limited exceptions for gifts and inheritances. Generally, this also means that any property that a spouse owned prior to the marriage is not part of the marital estate. There are ways that separate property may become marital property, and such situations can be very complex.

Prior Agreement

A couple can also help prevent confusion regarding personal and marital assets by negotiating a prenuptial or postnuptial agreement well in advance. These agreements can specify specific property to be marital or non-marital as needed, and, as long as the agreement is conscionable—or relatively fair—and voluntary, it will be recognized and enforced by the court during divorce. Similarly, this type of agreement can also spell out property division arrangements before they are even needed.

Property Division Assistance

If you are considering a divorce and need more information about how your marital and personal property might be affected, contact DuPage County family law attorney. We will help you understand the law and work with you in negotiating a reasonable property settlement with your ex-spouse. Call 630-871-1002 to schedule your free consultation with the Andrew Cores Family Law Group today.

Sources:

http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=075000050HPt%2E+V&ActID=2086&ChapterID=0&SeqStart=6100000&SeqEnd=8350000