What Happens to Property Owned Before Marriage in Divorce? | IL

 Posted on September 30, 2024 in Property Division

Divorce is a complicated process, especially when it comes to dividing property. Just like the rules of dividing property purchased during a marriage, the laws of dividing property acquired before a marriage may not always be clear. Understanding these nuances can help you protect your assets and prepare for future legal proceedings. To help ensure a fair outcome, an experienced Kane County attorney can guide you through the steps of dividing your property.

Is Property Acquired Before the Marriage Considered Separate?

In most cases, property owned by either spouse before the marriage is viewed as separate property. This means that the assets owned prior to the marriage generally remain with the original owner after a divorce. In Illinois, separate property includes items such as:

• Real estate purchased before the marriage

• Savings or investment accounts opened in one spouse’s name before marriage

• Personal items like jewelry, vehicles, or furniture

• Inheritances received before the marriage

While this property is usually considered separate, there are circumstances where it could become part of the marital estate.

Can Separate Property Become Marital Property?

Yes, separate property can become marital property in certain situations. This process is known as commingling, which occurs when separate property is mixed with marital assets in a way that makes it difficult to distinguish between the two. For instance, if one spouse owned a home before marriage but both spouses contributed to mortgage payments or improvements during the marriage, at least part of the house may be considered marital property.

Another way separate property can become marital property is through transmutation, which happens when the property is intentionally converted into marital property. For example, if a spouse changes the title of an asset to include the other spouse’s name, the court will likely view the property as part of the marital estate during divorce proceedings.

How Do Courts Handle the Division of Separate Property?

Since separate property generally remains with the original owner, it is usually not subject to division. However, proving that an asset is separate property can be challenging. Courts often require documentation, such as receipts, titles, or bank records, to establish that the asset was purchased before the marriage and kept separate throughout it.

If the court determines that part of the separate property has become marital property due to commingling or transmutation, it may divide the value of the asset based on factors like the duration of the marriage and the financial contributions of both spouses.

How Can You Protect Property Acquired Before Marriage?

A prenuptial agreement is one of the most effective ways to protect property obtained before marriage. It allows both spouses to define what assets will remain separate and how property will be divided in the event of a divorce. If a couple does not have a prenuptial agreement, they can create a postnuptial agreement after the marriage to address similar concerns. You can further protect your property by keeping clear documentation of your assets, maintaining separate accounts, and avoiding commingling when possible.

Contact Our Kane County, IL Division of Marital Property Lawyers

Dividing property in a divorce can be a difficult process, but having a skilled legal team on your side can make a significant difference. A St. Charles, IL divorce attorney at Goostree Law Group can help you protect your property by presenting a strong case for a fair division of marital assets. Contact Goostree Law Group at 630-584-4800 to schedule a free consultation today.