Non-Marital Property in Divorce

 Posted on July 30, 2013 in Divorce

Next to child custody, property division is the biggest source of disputes that arise during a divorce. Even when parties intend to divide the property amicably, it is not uncommon for disputes to arise. In some cases, disputes over property are manifestation of the rancor usually associated with divorce. In other cases, property disputes are the result of improper planning both before and during the marriage. A common problem is the division of non-marital property; property that at one point belonged to only one spouse. Common examples of non-marital property include inheritances, assets acquired before the marriage and assets acquired after the marriage. Marital property, on the other hand, belongs to both spouses. Examples include the marital home, retirement benefits and all other assets acquired through marital efforts. Typically, only marital assets are subject to equitable division in Illinois. The judge will take into account several factors to determine how to divide the marital assets to reflect the realities of the marriage. Non-marital property, on the other hand, will generally not be part of the martial estate, thus not subject to equitable division, with one big exception. Under the concept of transmutation, a property that originally started as non-marital property, may turn into marital property and become subject to equitable division. This can happen through a variety of the ways. For example, the party owning the asset may voluntarily agree to add the other spouse’s name on the title. Or, a couple uses a non-marital checking account to make deposits and purchases during the marriage, making it part of the marital estate. Yet another example is when one spouse inherits a home, but that the couple uses it as the marital residence and spends marital income to pay taxes, maintain and fix it. In this case, what started as a non-marital home would likely become part of the marital estate and be subject to equitable division. Fortunately, proper planning can avoid these issues. If you have questions about property division or how to protect yourself, please contact an experienced Illinois family law attorney to ensure that you protect your assets.