In 12 years of practicing family law in Chicago, Illinois I’ve found that parties almost always separate and begin pursuing separate lives before they even file for divorce. Often, the parties will then believe that a “line in the sand” has been drawn where their earnings are no longer the property of their spouse as well.
750 ILCS 5/503 governs what happens with this property in a marriage and it states specifically, “For the purposes of this Act, “marital property” means all property, including debts and other obligations, acquired by either spouse subsequent to the marriage,” and then lists a series of exceptions. Separation is not one of the exceptions listed in the statute.
So, as a general rule, in Illinois, separation does NOT mean the new assets you earn and save is still marital property. Typically, for divorcing couples, this means 401k and pension contributions during the separation.
Property acquired by either spouse during the marriage is presumed to be marital property regardless of how title is actually held. In re Marriage of Dann 2012 IL App(2d) 100343. This presumption includes property held solely in one parties’ name. In re Marriage of Foster 2014 IL App (1st) 123078. To overcome the presumption that that a parties’ interest in a property is non-marital, that party must produce clear and convincing evidence that he or she acquired his or her interest by one of the means specified in section 503(a) of the Act.
Specifically, there is an exception that contemplates something like separation except it is significantly more strict than merely applying the physical separation as the separation date.
The statute allows that “property acquired by a spouse after a judgment of legal separation”. 750 ILCS 5/503(a)(3) be non-marital.
A judgment of legal separation is a formal document issued by the courts. You must specifically petition the court for a judgment of legal separation. To ask for a judgment of legal separation, one must meet the following requirements as laid out by the statute:
“Any person living separate and apart from his or her spouse may have a remedy for reasonable support and maintenance while they so live apart.
Such action shall be brought in the circuit court of the county in which the petitioner or respondent resides or in which the parties last resided together as husband and wife. Commencement of the action, temporary relief and trials shall be the same as in actions for dissolution of marriage, except that temporary relief in an action for legal separation shall be limited to the relief set forth in subdivision (a)(1) and items (ii), (iii), and (iv) of subdivision (a)(2) of Section 501. If the court deems it appropriate to enter a judgment for legal separation, the court shall consider the applicable factors in Section 504 in awarding maintenance. If the court deems it appropriate to enter a judgment for legal separation, the court may approve a property settlement agreement that the parties have requested the court to incorporate into the judgment, subject to the following provisions.
- The court may not value or allocate property in the absence of such an agreement;
- The court may disapprove such an agreement only if it finds the agreement is unconscionable.
- Such an agreement is final and non-modifiable.” 750 ILCS 402(a) through (b)
You’ll see that, in Illinois, legal separation is largely the same thing as a dissolution of marriage except without the actual divorce and the court will only divide assets if the parties are in agreement and the agreement is not unconscionable (basically, fair). For these reasons, hardly anyone gets a legal separation because it is takes the same equivalent amount of work as asking for and getting a divorce, without the finality of a divorce.
Even then, a judgment for legal separation can still be dangerous because it does not finalize the support issues. “if a party to a judgment for legal separation files an action for dissolution of marriage, the issues of temporary and permanent maintenance shall be decided de novo.” 750 ILCS 402(c). “De novo” means to look at fresh with no binding consideration of previous orders.
I have divorced thousands of people. I have filed numerous petitions for legal separation, they have all become petitions for dissolution eventually.
In my experience, Chicago, Illinois courts will consider the separation date for several reasons. Mostly, the courts will consider the separation date as a factor in the maintenance calculation as proof that the parties can support themselves.
My advice to a separated party eager to preserve his or her earnings from becoming marital property is to settle your divorce as quickly as possible.
Apart from that, be aware that you are not obligated to save your earnings during a divorce. The only thing you are not allowed to do is to dissipate those assets. Dissipation is not defined in the statute and we have to look back to very old cases to get a definition such as “use of marital property for the sole benefit of one of the spouses for a purpose unrelated to the marriage at a time that the marriage is undergoing an irreconcilable breakdown” In re Marriage of Petrovich (1987), 154 Ill.App.3d 881, 886. In practice, dissipation usually means spending money on your new love interest, drugs and/or gambling.