One of the most important tasks for Illinois courts in a divorce case is to divide the divorcing parties’ property. Before a court can divide the parties’ property, it must first determine whether property is marital or non-marital.
Illinois law presumes that any property acquired by a spouse during the marriage is marital property. This may include earned income, personal property, cars, real estate, investments, etc. Contributions to retirement accounts are also presumed to be marital property. Property may be marital even if it is titled in only one spouse’s name. Illinois courts divide marital property in an equitable manner. This does not necessarily mean that the court will divide the property equally in half between the parties. One party may be awarded a larger portion of the marital property if the court believes such a division to be appropriate under the circumstances.
Illinois law also outlines certain categories of non-marital property. A court can assign a party’s non-marital property to him or her after the divorce. Non-marital property includes the following:
1. property acquired by gift, legacy or descent;
2. property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, legacy or descent;
3. property acquired by a spouse after a judgment of legal separation;
4. property excluded by valid agreement of the parties;
5. any judgment or property obtained by judgment awarded to a spouse from the other spouse;
6. property acquired before the marriage;
7. the increase in value of property acquired by a method listed in paragraphs 1 through 6 of this subsection, irrespective of whether the increase results from a contribution of marital property, non-marital property, the personal effort of a spouse, or otherwise, and it may subject to the right of reimbursement;
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.
A good family law attorney will be able to gather the property information in order to properly classify property as marital or non-marital. The process of gathering this information is called “discovery”. Occasionally, information revealed in discovery can help a party argue that non-marital property should be turned into marital property and be subject to division by the court. This is one of the reasons why it is important for people to conduct discovery in divorce cases.