When couples divorce in Illinois, one of the most critical, and often contentious, issues is the division of property. Understanding what qualifies as marital versus non-marital property is essential for protecting your financial interests and ensuring a fair outcome. Illinois follows the principle of equitable distribution, meaning property is divided fairly, though not necessarily equally.
At Kulerski & Cornelison, our team serves families DuPage and Cook counties. Our lawyers help you divide your assets and protect them under state law. Speak with our team to learn how we can help.
What Is Marital Property in Illinois?
Marital property includes most assets and debts acquired by either spouse during the marriage, regardless of whose name is on the title. This broad definition covers:
- Income earned by either spouse
- Real estate purchased during the marriage
- Vehicles, furniture, and household items
- Retirement accounts and pensions
- Investment portfolios
- Business interests started or grown during the marriage
- Debts incurred during the marriage
Illinois law presumes that most property acquired after the date of marriage and before a legal separation or divorce judgment is marital property.
What Doesn’t Count: Non-Marital Property
Non-marital property is generally excluded from division and remains the sole property of one spouse. Common examples include:
- Property acquired before the marriage
- Gifts or inheritances received by one spouse
- Assets excluded by a valid prenuptial or postnuptial agreement
- Property acquired after a legal separation
- Compensation for personal injury (in some cases)
However, the distinction is not always clear-cut. If non-marital property is commingled with marital assets it may lose its separate status. Courts examine the intent and financial tracing to determine whether an asset has been transmuted into marital property.
How Illinois Courts Divide Marital Property
Illinois courts do not automatically split marital property 50/50. Instead, they apply equitable distribution, which considers fairness based on the couple’s unique circumstances. Factors include:
- Each spouse’s income, occupation, and earning potential
- Duration of the marriage
- Contributions to the marital estate (financial and non-financial)
- Age, health, and employability of each spouse
- Custodial arrangements for children
- Tax consequences of the division
- Valid prenuptial or postnuptial agreements
- Economic hardship or disparity between spouses
Importantly, Illinois is a no-fault divorce state, meaning misconduct such as infidelity does not usually affect property division.
Special Considerations for Business and Retirement Assets
Business interests and retirement accounts often complicate property division. If a business was started or expanded during the marriage, its value may be considered marital even if only one spouse was involved. Courts may require business valuations and assess each spouse’s contributions.
Similarly, retirement accounts (401(k), IRA, pensions) accumulated during the marriage are typically marital property. These may be divided using a Qualified Domestic Relations Order (QDRO) to avoid tax penalties.
Proving Non-Marital Property Status
The burden of proof lies with the spouse claiming an asset is non-marital. This requires evidence, such as:
- Documentation showing the asset was acquired before marriage
- Records of inheritance or gift
- Financial tracing to show no marital funds were used
Without sufficient evidence, courts may presume the asset is marital and subject to division.
Can Property Division Be Modified?
Once finalized, property division orders are generally not modifiable. Unlike child support or spousal maintenance, asset division is considered permanent. However, if fraud or concealment is discovered after the divorce, a party may petition the court to reopen the case.
Work with an Experienced Illinois Family Law Attorney to Divide Your Assets in a Divorce
Understanding what counts as marital property, and what doesn’t, is crucial during divorce proceedings in Illinois. The equitable distribution model ensures fairness, but it requires careful documentation, strategic planning, and legal insight. Whether you are protecting separate assets or negotiating a fair division, clarity on Illinois law helps you make informed decisions.
At Kulerski & Cornelison, our divorce lawyers are ready to help. Contact us today for a consultation of your case.