What Marital Property Gets Divided in Divorce

 Posted on December 15, 2014 in Divorce

Property division is one of the most important aspects of any divorce process, and probably the most important in marriages without children. Consequently, it leads to a lot of people wondering about how things get divided. All too often, people ask that question of how courts divide property before they ask a more fundamental question: “What does the court divide?” At a high level, the answer to that is simple. Marital property gets divided, and spouses get to keep their non-marital property for themselves. Answering the question of which property is marital and which property is not can become a bit more complicated.

What Is and Is Not Marital Property

The easiest place to start when discussing marital versus non-marital property is with a definition of marital property. Illinois law defines marital property as “all property acquired by either spouse subsequent to the marriage.” This means that things the spouses bring into the marriage are non-marital property and things they get afterward are marital property.

However, the law also includes some exceptions to that rule. There are certain things that spouses may acquire after a marriage that would still be non-marital property. These include:

• Property acquired as a gift or inheritance;
• Any increase in value from non-marital property; and
• Any income generated by non-marital property.

Spouses also have the right to trade or purchase other property using non-marital property without it becoming marital property. So, if a husband buys a car using money he brought into the marriage, the car would be non-marital.

Turning Non-Marital Property into Marital Property

Importantly, property that was non-marital can become marital property through a process known as transmutation. The exact way that property transmutes depends on the specifics of the property in question. One of the simplest pieces of property with which to understand transmutation is cash. Suppose a wife brings money into a marriage, or comes into an inheritance during the marriage. If she keeps that money separate from marital funds and leaves it in an account only she can access, then the funds are probably non-marital. Conversely, if she simply deposits that money in a joint bank account and treats it like any other cash, the court may rule that she has transmuted it to marital property.

The same thing can happen with real estate. If a husband owns a home before the marriage, but the couple moves in, lives there together for 30 years, and finally pays off the mortgage, that home starts to look a lot more like marital property.

Divorce is a complex legal process with many unexpected pitfalls. If you have questions about how a divorce proceeding works, reach out to an experienced DuPage County family law attorney today. Our firm is here to help you better understand all of your options.