How Marital Property Division Works in Illinois

Marital property division is one of the most highly contested - and least understood - issues in divorce. While the general rule in Illinois is that all assets and debts acquired during the marriage are marital and will be divided equitably, there can be surprises for those who go into that part of the divorce process unprepared. At Murphy & Dunn, P.C., our attorneys offer an initial consultation to explain how marital property division works in Illinois and how to protect your separate property rights.

Marital Property and Non-Marital Property

In Illinois, property is determined by the court to be either marital or non-marital. Marital property includes assets and debts accumulated from the date of your marriage until the date of your divorce. Non-marital property includes assets you had before your marriage, as well as gifts and inheritances received during marriage that you keep separate. However, many people overlook the "keep separate" part.

There are also many ways in which property can be part marital and part non-marital, and can also be changed from marital to non-marital and vice versa. As an example, if you invest $50,000 of your separate non-marital assets into a newly purchased marital residence during the marriage and put the residence in joint names, then that $50,000 potentially becomes a gift to the marital estate and will likely be divided equitably as a part of your divorce settlement. In the same way, if you commingle an inheritance with marital assets in a joint bank account, then that money will potentially be considered marital property and subject to division. These are all technical issues that require expert advice and negotiation in the divorce process.

As well, the manner in which title is held to property is not the sole question the courts look at in determining whether property is marital or non-marital. If you buy property with marital funds during the marriage, and the property is titled in only one spouse's name, it will still likely be considered marital property. Property questions are very complex and require close scrutiny by an experienced lawyer before a determination can be made as to whether it is marital or non-marital.

Dividing Retirement Plans

Pension plans, IRAs and 401(k) plan and similar type accounts are likely to be part marital and part non-marital. The portion earned during the marriage will be marital property, regardless of whose name is on the account. Retirement plan benefits are divided using a qualified domestic relations order (QDRO). The division of these assets is often the most difficult part of your property division, and are likely the most valuable asset you own. Do not try to negotiate away your rights in the other spouse’s retirement accounts. It could be devastating.

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