What Is Marital Vs. Non-Marital Property?

At the time of divorce, “marital” property is divided by the Court and distributed to the spouses in percentages that the Court deems to be fair, just and equitable. “Non-marital” property is not divided but is awarded to the party that owns the property.



In short, marital property is anything that comes to the marriage during the marriage that is not by gift or inheritance. Further, it makes no difference in whose name this property is held. For example, a spouse’s 401(K), profit sharing or pension plan is held in that spouse’s name only, and any portion of those benefits which were acquired during the marriage are marital property.

Any property that is owned by a party prior to the marriage in his or her own name will be treated as non-marital property at the time of divorce if the other spouse was never placed in title or in co-ownership on any such pre-owned property.

Non-marital property which was gifted to or inherited by one spouse during a marriage will become “marital” property if the other spouse, at anytime, becomes a co-owner of any such property.

Interest, dividends or appreciation in the value of non-marital assets is non-marital.

In Illinois, as in all other states, we have two types of law. The first type is statutory law which is that which is written in the law books. The other type of law is case law which comes into being when a higher Court (Appellate or Supreme) interprets how a particular set of facts will fit in with our statutory law. For example, our statutory law provides that a home would be non-marital if a party owned it prior to the marriage and never put the other party on title to it. In this scenario, both parties live in the home during the marriage and all mortgage payments are made out of marital earnings. How house payments may affect the situation are not covered under our statutory law, but our higher Courts in Illinois have ruled on whether the other spouse has any claim for house payments made for the other spouse’s non-marital property. Or, what happens if a room addition is added onto one party’s non-marital home but paid for with funds earned by both of the parties during the marriage?


The above questions, along with multitudes of other questions in other areas of divorce law, have already been answered by our higher Courts and all of the exceptions to (and qualifications of) the above stated law regarding marital versus non-marital property are simply too voluminous to enumerate in this paper. Also, our laws regarding the transmutation and commingling of estates is ever evolving and changing.

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Kari and Richard are staunch advocates of the non-court approach to divorce, and are also active and seasoned litigators with over 80 years of combined trial experience in the Illinois divorce courts of Cook and DuPage counties.