What is non-marital property?



When going through a divorce in Illinois, one party may believe that he is entitled to keep some property, because it is non-marital.

Many people have misconceptions about the law when it comes to the division of property during a divorce. When going through a divorce in Illinois, one party may believe that he or she is entitled to keep some property, because he or she believes it is non-marital. We often find that our clients suffer from a “pronoun problem” when they first come into our office. They mistakenly believe that they get to keep, for example, their car and their checking account because they are titled solely in their name. However, keeping that property isn’t as simple as saying it is non-marital.

In an Illinois divorce, it’s important to understand the concept of non-marital property. Let’s delve into what constitutes non-marital property, the issue of commingling assets, and how to protect non-marital property during a divorce.

What is Non-Marital Property in Illinois?

Non-marital property typically refers to assets or liabilities acquired before the marriage or any property received as a gift or inheritance by one spouse during the marriage. Assets obtained before the marriage are usually straightforward to identify and are not typically contested during a divorce. However, when property is acquired through a gift or inheritance during the marriage, it may become a subject of dispute regarding its classification as non-marital property. With limited exceptions, anything acquired during the marriage is marital property regardless of the title. 

Proving Non-Marital Property Status

The burden-of-proof lies with the party claiming that certain property is non-marital. Under Illinois law, if the property is acquired during the marriage, it is presumed to be marital property subject to equitable distribution. Therefore, if a spouse argues that a specific asset obtained during the marriage is non-marital, they must demonstrate that it was a gift or inheritance solely intended for them.

Methods to Proof Non-Marital Property

Proving that an asset was a gift may involve presenting testimony from the person who gave the gift, if available. However, if that person is not accessible, other facts and circumstances surrounding the acquisition of the property can be examined to convince the court that it was indeed a gift. It’s crucial to collect and retain any relevant documents pertaining to assets believed to be non-marital early in the divorce process. This ensures that all necessary steps can be taken to safeguard the property.

Commingling of Assets

One challenge in protecting non-marital property arises when it becomes commingled with marital assets. Commingling of assets refers to the mixing or blending of separate property with marital property, which can complicate the determination of ownership during a divorce. This can happen when individuals combine their funds, use joint bank accounts for personal expenses, or use separate funds to acquire assets jointly. 

For example, if one spouse uses their inheritance money to make a down payment on a house jointly owned by both spouses, the separate property (inheritance) becomes entangled with marital property (jointly owned house). In this situation, a court would likely treat this payment as a “gift” from the non-marital estate to the marital estate; thus, making the entire house marital property. Commingling can make it challenging to distinguish between separate and marital assets, potentially leading to disputes over property division during divorce proceedings. It is important to keep separate property clearly separate and maintain proper documentation to avoid commingling and protect individual ownership rights.

Protecting Non-Marital Property in an Illinois Divorce

If you want to make sure that your personal assets stay separate during a marriage, there are a few things you can do:

  1. Create a prenuptial or postnuptial agreement that safeguards your assets for as long as the agreement is valid.
  2. Keep separate accounts for any investments or funds that you want to keep separate from marital assets.
  3. Use a trust to protect and keep your assets separate, similar to having a separate account.
  4. Maintain detailed records of any joint accounts, such as credit cards, so you can provide evidence of individual expenses and transactions.

To safeguard property during a divorce, it is essential to consult with an experienced family law attorney. Early and ongoing communication with your attorney is crucial to ensure the proper evidence is gathered and prepared for trial if necessary. An attorney will guide you through the process, help you understand the applicable laws, and protect your rights regarding non-marital property.

For prompt assistance and guidance on non-marital property and other divorce matters, contact Reidy Law Office today. Our experienced family law attorneys are here to support you through this challenging time and advocate for your best interests.