In Illinois, courts divide marital property equitably, not necessarily equally. But what property counts as marital property, rather than the separate property of one spouse or the other? And how does the court decide how to divide the property?
This article answers some common questions about property division in Illinois. For more information on property division, see our page, Divorce: Who Gets What? For information on Illinois divorce law, including articles on property division, child support, custody, and more, see our Illinois Divorce and Family Law page.
What are the property rights of married people?
Spouses have the same rights as single persons to individually own, buy, sell, and give away property. However, once either spouse files for divorce, the court automatically issues a stay: a court order prohibiting either spouse from in any way disposing of property without the permission of the court or the other spouse. (Either spouse may spend money on basic necessities, bills, and the costs of the divorce proceeding without permission, however.) This maintains the status quo while the court decides how to divide the property.
What is "marital property"?
For purposes of distributing property in a divorce, all property acquired by either spouse after the marriage and before a judgment of dissolution of marriage, including non-marital property transferred into some form of co-ownership between the spouses, is presumed to be marital property. There are some exceptions. For example, if one spouse received the property alone as a gift or inheritance, it remains that spouse's own separate property.
The name in which property is held doesn't determine whether it is marital or nonmarital property. Regardless of whether title is held individually or by the spouses in some form of co-ownership (such as joint tenancy, tenancy in common, tenancy by the entirety, or community property), most property acquired during the marriage is considered marital property, and both spouses have an interest in it.
If property qualifies as "marital property," then it is subject to equitable distribution by the court.
What is "nonmarital property"?
Nonmarital property is property that is owned solely by one spouse or the other, not by the couple together. Nonmarital property isn't subject to equitable division, but remains the property of the owner spouse.
Here are some common categories of nonmarital property:
- property acquired by one spouse by gift, legacy, or descent
- property acquired by one spouse in exchange for property that spouse acquired before the marriage or by gift, legacy or descent
- property acquired by a spouse after a judgment of legal separation
- property excluded from the marital estate by valid agreement of the parties (for example, by a prenuptial agreement)
- any judgment or property obtained by judgment awarded to one spouse from the other
- property one spouse acquired before the marriage
- the increase in value of any of these types of nonmarital property during the marriage, whether the increase results from a contribution of marital property, non-marital property, the personal effort of a spouse, or otherwise (subject to the nonowner spouse's right of reimbursement), and
- income from any of these types of nonmarital property, if the income is not attributable to the personal effort of a spouse.
How are property and debt distributed between the parties in a divorce case?
Generally, each spouse gets to keep his or her nonmarital property. The marital property and marital obligations (debt incurred during the marriage, except for dissipation purposes) is to be equitably distributed between the parties. In deciding on a fair distribution, the court will not consider marital misconduct (fault). However, the court will look at these factors:
- each spouse's contribution to the acquisition, preservation, or increase or decrease in value of the marital or non-marital property, including the contribution of a spouse as a homemaker or to the family unit
- the dissipation by either spouse of the marital or non-marital property
- the value of the property assigned to each spouse
- the duration of the marriage
- the relevant economic circumstances of each spouse when the division of property is to become effective, including the desirability of awarding the family home, or the right to live there for a reasonable time, to the spouse having custody of the children
- any obligations and rights arising from a prior marriage of either party
- any prenuptial agreement the spouses made prior to marriage
- the age, health, occupation, income, vocational skills, employability, estate, liabilities, and needs of each spouse
- the child custody arrangements
- whether the court awarded spousal maintenance (for example, the court might award a larger amount of property to a spouse rather than awarding that spouse alimony)
- the reasonable opportunity of each spouse to earn income and acquire assets in the future, and
- the tax consequences of the property division on each spouse.
If the spouses have not kept their non-marital property separate, how does the court decide on property division?
Spouses often commingle their marital and nonmarital property. For example, the couple might move into a house owned before marriage by one spouse, then begin to pay the mortgage and maintenance jointly. Or, one spouse may put inherited money into the couple's joint bank account.
As common as this might be, however, it can cause big complications if the couple decides to divorce. The spouses can make their own decisions about how this property will be treated (for example, in a prenuptial agreement). If they don't, however, the court handles it like this:
When marital and nonmarital property are commingled by the spouse who owned the nonmarital property contributing it to marital property, or by the parties contributing marital property to a spouse's nonmarital property, the contributed property is transmuted to the estate receiving the contribution. In other words, the contributed property becomes part of the type of property to which it was contributed. For example: If a wife contributes inherited (nonmarital) funds to the purchase of a house which is held in joint tenancy by both parties, the wife's nonmarital funds change into marital funds.
However, there is a right of reimbursement for the contributed property. The contributing spouse (or the couple, if marital property was contributed to nonmarital property) shall be reimbursed from the spouse or couple that received the contribution. For example, the wife who contributed inherited funds to buying the family home could be entitled to reimbursement of that money on divorce.
Reimbursement is allowed only if the contribution is retraceable by clear and convincing evidence or was a gift. Reimbursement is also allowed if one spouse contributes personal effort during the marriage (which would otherwise belong to the couple as marital property) to the nonmarital property of the other spouse. For example, if one spouse does all of the repairs and maintenance on a home the other spouse owned prior to marriage, the homeowner spouse would have to reimburse the value of this effort to the marital estate.