Understanding the Difference Between Marital Property and Non-Marital Property in an Illinois Divorce

Couples do not enter into a marriage thinking that it will end someday. They build lives and memories together, founded on love. Through the course of these experiences, they acquire assets with the intent that this life they are creating is forever. Unfortunately, not all couples survive the speed bumps and obstacles along the way, leading to a divorce or separation. When that happens, there must be a division of their lives together. This can become a complicated process because there may be certain assets each spouse has a claim to, along with some assumptions about what the other does not hold a claim to.

Illinois is not a community property state, which means that the law recognizes everything from assets to money to property as being part of the marriage if it was acquired during the marriage. However, there are ways to tell what is and is not marital property. Knowing them could impact your divorce or separation.

Spousal Property Rights

When assets, property, or money are acquired during a marriage, regardless of which spouse is responsible for the acquisition, the rights of each spouse are seen as the same as those of an individual who does the same. This means that each spouse has a claim to the property. For many couples, they may assume that if one spouse makes more money or can purchase more than the other, they are more inclined to claim the property. However, the law sees these purchases as the property of both partners, meaning that one partner can have a higher income because the other spouse picks up other responsibilities that allow the high-income earner to work additional hours.

If a couple chooses to divorce, a stay will be issued by the court, which forbids either spouse from disposing of any property in any way without first obtaining the court’s permission. Because Illinois law seeks to divide property in an equitable, rather than equal, way, this stay allows the court time to ensure division is done appropriately.

Understanding the difference between marital property and non marital property in an Illinois divorce

Marital Property in Illinois

Understanding what constitutes marital property in Illinois is determined by when it was acquired. By law, any asset that is acquired during the marriage, or appraised while the spouses are married, is considered marital property and subject to equitable division. It does not matter whose name the property is held in or what the title may say; it remains marital property and subject to appropriate division. Marital property can include:

  • Investment, bank, and brokerage accounts
  • Personal property, such as furniture, home equipment, and more
  • Any personal or business investments
  • Contributions to retirement accounts, including pensions
  • Any real estate, whether it be the primary home, a vacation home, or an investment property
  • Stocks and stock options
  • Vehicles

It may be surprising to see assets such as retirement accounts listed as marital property, but the law considers them to have been acquired through the joint efforts of both spouses rather than just by one spouse. Therefore, there is an equal claim to it by both spouses. This is an example of how property is viewed independently of the title owner.

Non-Marital Property

By understanding what marital property is, it makes identifying non-marital property easier. Non-marital property includes:

  • That which is acquired as a gift, by descent, or by legacy
  • Property obtained by one spouse as a result of a legal separation
  • Any property that was purchased prior to the marriage
  • Any property that is included in a signed exclusion agreement, such as a postnuptial agreement, between both spouses
  • Anything acquired as a result of an exchange of property that was a gift or the result of descent or legacy
  • Any property acquired by a judgment awarded to either spouse

An example of this type of property would be an inheritance that one spouse receives. If it is a financial inheritance, and it is deposited into an account that is held only in the name of that spouse, it is non-marital property. However, if that same inheritance is deposited into a joint account for both spouses, it then becomes marital property. Understanding what is and isn’t marital property can keep spouses from unintentionally creating marital property from what would otherwise be considered non-marital property.


Q: What Is Considered Non-Marital Property in an Illinois Divorce?

A: Non-marital property is any asset that is acquired prior to the marriage or any property that one spouse acquires after a legal separation is granted. This includes gifts and inheritances as well as real estate, finances, and more. There must not be any comingling of non-marital property with the other spouse, or it could be considered marital property.

Q: Can Non-Marital Property Become Marital Property in Illinois?

A: Yes, non-marital property can become marital property. If, for example, one spouse owns property before the marriage, but the other spouse moves in, resulting in both spouses contributing to the mortgage, upkeep, and other expenses of maintaining real estate, it could then be considered marital property.

Q: Are Separate Bank Accounts Considered Marital Property in Illinois?

A: Regardless of who is titled on an account, deed, or other ownership designation, any property acquired during the marriage is considered marital property. This includes financial accounts opened during the marriage or contributions made to said accounts. Any marital property, including finances, is subject to division during the divorce process.

Q: How Is Property Divided in an Illinois Divorce?

A: Marital property is divided equitably according to Illinois law. This does not mean an equal split, but rather that each spouse receives a fair division. If one spouse, for example, receives real estate property, then the value (or potential value) is offset by property awarded to the other spouse. This creates equity rather than equal possession.

Will County Divorce Attorney

If you have questions about the difference between marital property and non-marital property, contact a Will County divorce lawyer at Vahey Law & Mediation, LLC. Divorce can be difficult, but with the right answers, you will be prepared to fight for a fair and equitable outcome. Call us today.


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