Wakeman Law Group, PC Legal Blog

What counts as non-marital property in an Illinois divorce?

On Behalf of | Nov 16, 2023 | Divorce

Illinois spouses often disagree about how their divorce should be resolved. They know they will have to make arrangements for sharing custody if they have children and split up their properties, but reaching an agreement can be a major challenge.

Sometimes, a couple’s primary conflict relates to specific assets. Both spouses may want to maintain possession of the marital home. Other times, there is a disagreement about what assets are subject to division. Each spouse has a right to an equitable share of marital property. Technically, only marital property is at risk of division in a divorce. Each spouse could potentially also have separate property that they don’t have to share. What constitutes separate property in an Illinois divorce?

Assets included in marital agreements

One of the easiest ways to establish that certain assets are the separate property of one spouse is to sign a contract affirming that fact. Both prenuptial and postnuptial agreements can designate specific assets as separate property, and the courts frequently uphold such terms even during litigated divorces. Houses, businesses, vehicles and financial accounts, including retirement savings, may have protection due to a marital agreement.

Assets owned prior to marriage

People can marry at any point in their lives and may have acquired very valuable property before their weddings. The assets that people own before marriage will usually remain their separate property when they divorce. That includes any increase in value of those assets and any other property that they obtained by liquidating or trading their separate property. Additionally, any property or income acquired after a legal separation but prior to a divorce will also be separate property.

Gifts, judgments and inheritances

Illinois law also recognizes that people can receive property intended solely for them. Gifts that someone receives, even during the marriage, will remain separate property. The same is typically true of inherited assets. Finally, assets related to a judgment in favor of one spouse, such as proceeds from a personal injury lawsuit, are often separate property. However, in some cases, separate property is at risk of division because people commingle it with marital resources.

Looking over financial records carefully with the assistance of an attorney can help people determine what marital assets they will need to divide and what they can preserve as separate property in a divorce.