What is Marital Property?

Property

Couples often view marriage as a chance to construct a shared life. Marriage comes with many benefits, including financial incentives. Buying a home, vehicle, and establishing joint-bank accounts or retirement accounts is something that people look forward to. Still, divorce is a reality and when the tough decision is made to go through with a divorce the question of asset division inevitably comes up. 

What is considered marital property?

Illinois marital property laws define marital property as any property acquired during the marriage with specific exceptions. Here is the marital property definition taken from the Illinois State Laws: “marital property” means all property, including debts and other obligations, acquired by either spouse subsequent to the marriage, except the following, which is known as “non-marital property.”

Pronoun Problem

Most of our clients suffer from a “Pronoun Problem” when they first come to see us. They believed that something held in their individual name would remain their property when the divorce was final. For example, if they have a separate checking account, they believe it belongs to them, because it is in their name only. This is FALSE!

I have even used this example, got a nod of the head confirming that they understand, but then they ask, “but my car is mine because it is in my name, right?”  Keep reading to understand the key process on dividing property.

Key Question You Must Ask

The key question that you must ask is, “was the item in question acquired during the marriage?” If the answer is yes, it is likely marital property. For example, a paycheck is written to an individual spouse and not to the marriage couple. However, if the work was done during the marriage, then it is presumed to be marital property.

Marital property can include:

  • Real estate
  • Cars
  • Bank accounts
  • Furniture
  • Stocks
  • Pensions
  • Retirement assets

Marital Property in Illinois is not divided 50/50

California is famously, or possibly infamously, known for its community property laws. In California, if a divorce agreement is not reached, then whatever property a couple acquires during marriage is considered community property and is thus split evenly. Take note of the word ‘evenly.’ Not all states are community property states, and even the ones that are don’t adhere to strict 50/50 divisions. 

Illinois follows equitable distribution of marital property. In other words, we try to divide property fairly based on the unique facts of the situation which may not be exactly equal. The state’s family law code allows for the ‘distribution of assets in just proportions.’ To gauge what these ‘just proportions’ are there are several factors that are considered. 

Factors including:

  • If each spouse made financial and non-financial contributions towards the acquisition and preservation of property.
  • The relevant economic situation of each spouse at the time of the divorce
  • What each spouse will be expected to parental responsibility
  • The age, health, occupation, ability to be employed, amount of income, vocational skills, needs, and liabilities of each spouse 
  • The length of the marriage 
  • The value of all joint property
  • Responsibilities or entitlements stemming from a prior marriage
  • Provisions within prenuptial or postnuptial agreements
  • Tax implications related to the division of assets
  • Establishing whether marital assets will be granted in conjunction with or instead of spousal maintenance (formerly known as alimony)
  • Misappropriation or mismanagement of marital finances. Examples include:
    • Destruction or devaluation of shared assets. 
    • Excessive spending on non-marital purposes

What if assets co-mingle?

If a married couple lives in a house that was acquired prior to the marriage. What happens if one of the spouses uses their income to build a pool, repair a roof, or do any sort of investing into the property? 

Is it now part of the marital estate? Technically, it can be. This is why a family law attorney well-versed in property division laws can be so important in the divorce process. 

Retaining a divorce attorney is highly-recommended.

It might sound cliche, especially coming from a law firm, but it’s highly recommended you retain (or at least consult with)  the services of a family lawyer when going through a divorce. The Illinois Marriage and Dissolution of Marriage Act states: ‘It is in the best interests of each of the parties to consult attorneys regarding the dissolution of their marriage…” 

With an attorney you can have someone guide you through what’s potentially a difficult emotional and family situation. If you’re looking to take the next steps forward, give our team a call.