When pursuing a divorce, property division is often an important concern, and can be a difficult process. First you must assess what is considered marital and non-marital property. Although this may initially seem straightforward, both parties may not automatically agree upon which property belongs to whom.
Marital Property vs. Premarital property
In Illinois, property that is acquired and owned during the marriage is considered marital property. However, property that you acquired and owned prior to marriage is considered your premarital property. This property is not considered part of the divorce and should be immediately transferred to the person who originally owned the property. There is one caveat, however: an increase in value of the premarital property during the marriage may then be considered a marital possession.
Take, for example, a situation in which you owned a condo before marriage, and after the marriage you decided to rent out the condo and move into a house. The rental income from this condo during the marriage is considered marital property and can be divided among the spouses. In this situation, the condo would revert to you, as the owner, upon divorce.
Consider the same scenario, however, although when you rented out the condo, you decided to use marital income to add upgrades. The value of the improvements to the property is considered marital property. If your spouse can prove to the court that the added value to the property during marriage has not decreased to nothing, then the added value of the property is considered marital property. The non-owning spouse may then demand a larger portion of other marital property in order to be compensated for these improvements.
Marital Property vs. Gifts
In Illinois, the court also makes exceptions for gifts during marriage. Any gift that was given specifically to you during your marriage is considered your separate property. These items may include:
- Property received as an inheritance or gift;
- Property received as an exchange for property owned prior to marriage;
- Property given to you by the court in a legal separation;
- Property excluded by a premarital or post marital agreement; and
- Property previously awarded to you in a court order.
This non-marital property should be immediately transferred to the owning party at the time of separation and should not be considered part of the marital property to be divided during a divorce.
Once marital property has been separated from non-marital property and other gifts, the court may then distribute the property equitably among both parties. In doing so, the court will consider specific factors.
The factors the court considers include:
- The contributions of each party during the marriage;
- The valuation of the property given to each party;
- The length of the marriage;
- The consequences to both parties due to the division of property;
- Obligations the parties may have due to a prior divorce;
- Premarital and postmarital agreements;
- The needs of the parties, including medical, emotional, and occupational;
- The custody arrangement for children;
- Alimony awards;
- Future opportunities regarding income for the parties; and
- The tax consequences of the property division.
Understanding the consequences of property division is important when entering into a divorce. Our experienced Naperville family law attorneys can help you better understand your rights. Contact us today to schedule a consultation.