April 28, 2016
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.
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.
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.
Separate property is owned solely by one spouse or the other, not by the couple together: it's not subject to equitable division, but remains the sole property of the owner spouse.
Here are some common categories of seperate property:
Generally, each spouse gets to keep his or her seperate property. The marital property and marital obligations (debt incurred during the marriage, except for dissipation purposes) is to be distributed equitably 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:
Spouses often commingle their marital and separate 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 seperate property are commingled by the spouse who owned the seperate property contributing it to marital property, or by the parties contributing marital property to a spouse's separate 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 (seperate) funds to the purchase of a house which is held in joint tenancy by both parties, the wife's seperate property 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 seperate 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 separate 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.