When couples divorce in Illinois, one of the most important and often contested issues is the division of property. Illinois follows an equitable distribution model, meaning marital property is divided fairly, though not necessarily equally. To understand what may be subject to division, it is essential to know what counts as marital property under Illinois law.
At Kulerski & Cornelison, our Illinois family law attorneys serve families DuPage and Cook counties. Learn more about how we can help equitably divide your assets in a divorce.
What Is Marital Property?
Under the Illinois Marriage and Dissolution of Marriage Act (IMDMA), marital property includes all assets and debts acquired by either spouse during the marriage, unless the property qualifies as non-marital. This applies regardless of whose name is on the title or account.
Common examples of marital property include:
- Real estate purchased during the marriage
- Income earned by either spouse
- Retirement accounts and pensions accrued during the marriage
- Vehicles, furniture, and household items
- Bank accounts and investment portfolios
- Business interests acquired or developed during the marriage
- Debts incurred jointly or individually during the marriage
Timing Matters: Property Acquired During the Marriage
A key factor in determining marital property is when the asset or debt was acquired. If it was obtained after the date of marriage and before the date of legal separation or divorce filing, it is generally considered marital property, even if only one spouse’s name appears on the title or account.
For example:
- A home purchased in one spouse’s name after marriage is usually marital property.
- A retirement account funded during the marriage is generally marital, even if it’s in one spouse’s name.
- Credit card debt incurred during the marriage may be considered marital debt.
What Is Not Marital Property?
Illinois law also recognizes non-marital property, which is excluded from division. Non-marital property typically includes:
- Assets acquired before the marriage
- Property received as a gift or inheritance (even during the marriage)
- Property excluded by a valid prenuptial or postnuptial agreement
- Property acquired after a legal separation
- Income or appreciation from non-marital property, unless it was commingled
For instance, if one spouse inherits money and keeps it in a separate account, it may remain non-marital. However, if that inheritance is deposited into a joint account or used to purchase marital assets, it may become commingled and subject to division.
Commingling and Transmutation
In Illinois, non-marital property can become marital through commingling or transmutation:
- Commingling occurs when non-marital and marital assets are mixed, making it difficult to distinguish ownership.
- Transmutation happens when a spouse intentionally converts non-marital property into marital property, such as by titling a premarital home in both spouses’ names.
Courts will examine the intent and use of the property to determine whether it should be classified as marital.
How Marital Property Is Divided in Illinois
Illinois courts divide marital property based on equitable distribution, which means the division must be fair but not necessarily equal. Judges consider several factors, including:
- Each spouse’s contribution to the acquisition or preservation of property
- The duration of the marriage
- The economic circumstances of each spouse
- Any dissipation of assets (e.g., wasteful spending)
- Custodial arrangements for children
- Tax consequences of the division
It is important to note that fault is not considered in property division. The court focuses on financial and practical factors, not marital misconduct in most situations.
Why Proper Classification Matters
Accurately identifying marital vs. non-marital property is critical in any Illinois divorce. Misclassification can lead to unfair outcomes, disputes, and prolonged litigation. If you are unsure about how your assets may be treated, consult a family law attorney familiar with Illinois property division laws.
Get Help Navigating Property Division in Illinois
Whether you are preparing for divorce or reviewing your financial rights, understanding what counts as marital property in Illinois is essential. From homes and retirement accounts to business interests and debts, the classification of assets can significantly impact your financial future.
At Kulerski & Cornelison, our Illinois family law attorneys can help with your property division and other divorce needs. Contact us today for a consultation of your case.