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Marital Vs. Non-Marital Property in Illinois Divorces

Posted by Dominick R. Dolci | Aug 07, 2018 | 0 Comments

What is the Difference Between Marital and Non-Marital Property in an Illinois Divorce?

Whether you are considering divorce, looking to start the process, or already in the middle of a divorce case, you probably have many questions and concerns. We've worked with numerous divorce clients, and each divorce case is different. Each client has vastly different concerns, and we always strive to meet the unique needs of their case.

However, there is one question we get asked in every case we handle: How much will I get, and how much will I lose?

Whether a client is concerned about maintenance, child support, parenting time, or the division of marital assets, what they can get and lose in a divorce is an extremely important concern that we take very seriously. In many cases, the division of assets can have a significant impact on our clients' futures.

For that reason, we've decided to create a short guide to division of assets in an Illinois divorce.  

**We also understand that maintenance (alimony) is just as big of a concern for many individuals facing a divorce. We also have a guide for that! For a breakdown on Illinois maintenance calculation, please refer to our Maintenance Calculator and Guide.**

Division of Assets in an Illinois Divorce: A Guide

In any divorce, one common concern you deal with might be how your property and assets are divided. In fact, along with maintenance and parenting time, division of assets are one of the top concerns of our clients.

What can you keep?

What gets divided?

Whether you're concerned about monetary savings, a house, other valuable effects, or all of the above, it all matters.

Property division is different with each divorce. Sometimes, it is relatively simple and straightforward. Other times, the situation can become incredibly complex. We have seen both, and successfully represented both simple and complex divorce cases.

We understand; it can get confusing. What asset belongs to which person? How does the court decide how something is split?  

To make the division of property in Illinois divorces easier to understand, we'll start out by outlining the difference between marital property and non-marital property, and go from there.

The Difference Between Marital vs. Non-Marital Property in Illinois Divorces

At the root of property division is the concept of marital property and non-marital property. Property is divided differently depending on whether it's marital or non-marital.

Marital Property

Marital property is any property acquired by either spouse after marriage and before the official dissolution of marriage. There are a some exceptions to this guideline, such as gifts or inheritances that are given to only one spouse.

Most property acquired while you're married counts as marital property, including non-marital property that has been transferred into co-ownership. Even in cases where only one spouse holds the title or is listed on the property, that property is still considered marital if it was acquired while married.

In a divorce, marital property is usually subject to equitable division between both parties.

Non-Marital Property

Non-marital property, also called separate property, is property acquired by either spouse prior to marriage or after a judgement of dissolution of marriage. Some property acquired during marriage can be considered non-marital.

Non-marital property which can be acquired during marriage include:

  • Gifts or legacies endowed to only one spouse

  • Property acquired after legal separation

  • Property listed as non-marital property in a legal or prenuptial agreement

  • Property acquired in exchange for any non-marital property

  • Property awarded to one spouse by judgement

  • Income or returns from any non-marital property, including increases in value

Separate property considered solely the property of whomever owns it. In divorce, separate property is not subject to equitable division.

Division of Property, Equitable Division, and Other Considerations

In a divorce, equitable division does not necessarily mean equal division.

Equal division would indicate a 50-50 situation, where each spouse gets half.

Instead, equitable division means fair division. Various factors play into determining the fair amount for each spouse to receive.

When determining a fair division of marital property, a judge is required to consider factors such as:

  • Each spouse's contribution towards acquiring the marital property

  • Each spouse's contribution to the household and the family unit

  • The value of property and assets each spouse has

  • Duration of the marriage

  • Parental responsibility of each spouse

  • The economic situation of each spouse, including their age, health, employability, income, estate, and other needs

  • How much maintenance is ordered

Non-marital property, on the other hand, is not subject to equitable division. In some cases, one spouse could have significantly more non-marital property than the other. This might not seem fair towards the spouse with less non-marital property.

However, in cases where one spouse has significantly more non-marital property, the difference can impact how marital property is divided. For example, if one spouse inherited a house and can claim it as non-marital property, and the second spouse has very little non-marital property and a significantly lower income, the court may deem that it is fair for the second spouse to receive a larger portion of their combined marital assets.  

In such a case, the uneven distribution of property will factor into the division of marital property and maintenance calculations.

You can also see this exception in a real-life Illinois case, Marriage of Foster, which we have summarized below.   

Case Study: Marriage of Foster

In Illinois case 17 NE 3d 781, also known as Marriage of Foster, Yvonne Foster was awarded a much greater portion of marital property than her husband James Foster. The Foster case is textbook example of how significantly unequal non-marital income affects marital income division and maintenance calculation.

The basic facts of the case are:

  • James and Yvonne Foster were married from 1975 to 2012. On May 6, 2009, Yvonne Foster filed for divorce.

  • James Foster had an abundance of non-marital property, including land in Lipscomb County, Texas worth $1,030,979, land in Harper County, Oklahoma estimated to be worth $54,000, and one-third interest in property located in Prosser, Washington. His income was $58,000 per year, and he received payments from a trust fund. Additionally, James had other financial accounts that were determined to be non-marital property.

  • Yvonne, on the other hand, was a homemaker for the majority of her marriage to James. She had not worked for over 20 years, and had significantly less non-marital income than James.   

The court made a judgement for Yvonne to receive a greater share of the marital estate. James was awarded circa $74,028 of marital assets while Yvonne was awarded circa $120,086. James was given responsibility over all the marital debts, which amounted to approximately $74,206. In total, James was required to pay Yvonne a sum of $115,695, or approximately 65% of the value of their marital property. In addition, James was also required to provide:

  • Maintenance of 30% of his gross income from all sources, including his marital and non-marital income

  • $25,000 to pay towards Yvonne's attorney fees

Marriage of Foster is a good example of a situation where one spouse's significantly higher non-marital income factors into the division of marital income. Because James is employed and has much more non-marital income, he is in a more favorable economic position to Yvonne, who has been unemployed for over 20 years and has little non-marital income. Therefore, the court divided the marital property equitably, not equally, by distributing more of the marital property to Yvonne and granting her maintenance to put her in a better economic position.

Special Cases and Provisions

When determining the division of property, some cases are not clean-cut. There are complicated situations where an item could be categorized as marital or non-marital. In these cases, a court will make a determination based on the given circumstances.

In cases where one spouse makes a contribution to the other spouse's non-marital property which results in significant income, that income may be reimbursable. In such a case, the appropriate amount of income would be considered marital property. It is then considered divisible like all other marital property.

Although the laws regarding marital and non-marital property can help standardize division of property in a divorce, each divorce case is unique. Different cases have different exceptional circumstances that may not have a clear decision based on the laws regarding marital and non-marital property.

That is why, in a divorce, a seasoned family law attorney is essential to making sure the division of property is in your favor. An experienced and knowledgeable divorce lawyer can ensure your financial interests are well protected. Whether your divorce is straightforward or complex, an experienced lawyer can assess your circumstance and provide the information and advice you need to make informed decisions for you and your family.

Contact DuPage County and Illinois Divorce Lawyers at Dolci & Weiland

Dolci & Weiland divorce attorneys have decades of cumulative experience in Illinois family law and divorce law. We pride ourselves in providing quality legal assistance in divorce cases, and will advocate fiercely for your interests in any case. To speak to a divorce lawyer and schedule a consultation, contact us at 630-261-9098.

About the Author

Dominick R. Dolci

Managing Partner Dominick R. Dolci focuses his practice on criminal defense litigation and civil litigation. Dom graduated from John Marshall law school in 1990. He began his legal training in the Cook County States Attorneys Office where he worked at 26th and California. He then transferred ...


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