Division of Marital Assets

One of the key functions of a divorce is the division of property acquired during the course of a marriage. Illinois is an ‘equitable division’ state, meaning the courts are inclined to divide all marital property equitably. This can be either 50/50, 60/40, or another ratio based on what the court determines to be equitable.

Marital property is any property acquired during the course of the marriage (by either one of the parties or both) that was not gifted to just one of them and/or was not inherited by just one of them. Section 750 ILCS 5/503(a) of the Illinois Marriage and Dissolution of Marriage Act defines marital property as “all property, including debts and other obligations, acquired by either spouse subsequent to the marriage, except…”

Non-marital property is any property acquired prior to the marriage, by inheritance, or by gift. Section 750 ILCS 5/503(a) of the Illinois Marriage and Dissolution of Marriage Act defines non-marital property as “(1) property acquired by gift, legacy or descent or property acquired in exchange for such property; (2) property acquired in exchange for property acquired before the marriage; (3) property acquired by a spouse after a judgment of legal separation; (4) property excluded by valid agreement of the parties, including a premarital agreement or a postnuptial agreement; (5) any judgment or property obtained by judgment awarded to a spouse from the other spouse except, however, when a spouse is required to sue the other spouse in order to obtain insurance coverage or otherwise recover from a third party and the recovery is directly related to amounts advanced by the marital estate, the judgment shall be considered marital property; (6) property acquired before the marriage, except as it relates to retirement plans that may have both marital and non-marital characteristics; (6.5) all property acquired by a spouse by the sole use of non-marital property as collateral for a loan that then is used to acquire property during the marriage; to the extent that the marital estate repays any portion of the loan, it shall be considered a contribution from the marital estate to the non-marital estate subject to reimbursement; (7) the increase in value of non-marital property, irrespective of whether the increase results from a contribution of marital property, non-marital property, the personal effort of a spouse, or otherwise, subject to the right of reimbursement provided in subsection (c) of this Section; and (8) income from property acquired by a method listed in paragraphs (1) through (7) of this subsection if the income is not attributable to the personal effort of a spouse. Property acquired prior to a marriage that would otherwise be non-marital property shall not be deemed to be marital property solely because the property was acquired in contemplation of marriage. The court shall make specific factual findings as to its classification of assets as marital or non-marital property, values, and other factual findings supporting its property award.”

Illinois law considers all property to be marital unless a party can prove otherwise.

The legal standard of proof is that the party with the burden of proof, i.e. the party trying to establish the non-marital nature of the property, shall prove beyond a preponderance of the evidence that certain property is non-marital. If they cannot overcome this presumption, the courts will deem that property marital. Section 750 ILCS 5/503(b)(1) states, in pertinent part, that “for purposes of distribution of property, all property acquired by either spouse after the marriage and before a judgment of dissolution of marriage or declaration of invalidity of marriage is presumed marital property. This presumption includes non-marital property transferred into some form of co-ownership between the spouses, regardless of whether title is held individually or by the spouses in some form of co-ownership such as joint tenancy, tenancy in common, tenancy by the entirety, or community property. The presumption of marital property is overcome by showing through clear and convincing evidence that the property was acquired by a method listed in subsection (a) of this Section or was done for estate or tax planning purposes or for other reasons that establish that a transfer between spouses was not intended to be a gift.”

In addition to dividing the property, there are numerous ancillary issues that can arise out of property division in an Illinois divorce, including dissipation of assets, commingling of marital and non-marital assets, distribution of pension and/or retirement benefits, etc.

Dissipation of assets can be complex to navigate. 750 ILCS 5/503(d)(2) discusses the proper procedure by which to bring forth a dissipation claim against the other party. If you are facing issues in your current divorce, or are contemplating divorce and feel that this might become an issue, please contact us today to speak with a Cook County divorce attorney.

There are potential ways of making non-marital property marital. 750 ILCS 5/503(c) discusses how to treat property that has been commingled and how that property is now treated. While the law is stated in this section, it can be difficult to interpret, especially when looking at the statute and any relevant case law on the subject. Please contact us today to consult with an Illinois divorce lawyer about your specific issue.

Pensions and retirement accounts are a common topic when dividing marital assets. Despite the fact that the pension or retirement account is in the name of one party only, the value of the pension or retirement account that was acquired during the marriage is still considered marital property subject to equitable division. There are orders such as a Qualified Domestic Relations Order or the Qualified Illinois Domestic Relations Order. Both these types of orders are technical and require careful drafting to ensure proper transfer of retirement assets after the entry of a Judgment for Dissolution of Marriage. Please contact us today to discuss any Illinois divorce questions you may have.

Just as with marital property, marital debt is also divided equitably between the parties, even if incurred by just one party or under one party’s name. This can include mortgages, credit cards, etc. Please review our article on division of marital debts for more details regarding the subject.