Call Today 630.793.6337

Understanding Marital and Nonmarital Property

In 1992, an Illinois jury convicted a man of raping and murdering an 11-year-old girl. But 20 years later, DNA evidence cleared the man of these charges and he was released from jail. He filed a lawsuit against various government entities and officials and walked away with a $20 million settlement in March 2015 (minus taxes and attorney’s fees, which brought the actual payout down to $11.4 million). He met his wife in 1998 while serving his life sentence and they married in 2000. The man filed for divorce in July 2014, after he was released from jail but before he received the settlement. Did that settlement become part of their marital property?

What Is Marital Property?

Illinois law defines “marital property” as “all property, including debts and other obligations, acquired by either spouse subsequent to the marriage, except” for nonmarital property. Thus, the key to understanding what constitutes marital property is understanding what constitutes nonmarital property.

The following is considered nonmarital property under the Illinois Marriage and Dissolution of Marriage Act:

  • Property acquired by gift or inheritance;
  • Property acquired in exchange for property acquired before the marriage;
  • Property acquired after a judgment of legal separation;
  • Any property excluded by a valid prenuptial or postnuptial agreement;
  • Any judgment or property obtained by judgment awarded to a spouse from the other spouse (with some exceptions);
  • Most property acquired before the marriage and all property acquired using nonmarital property; and
  • The increase in value of nonmarital property.

Note that property acquired after the marriage and before a judgment of dissolution of marriage is presumed marital property.

Equitable Division of Marital Property

Illinois is an equitable division state, which means that marital property is divided fairly rather than equally. In other words, the property is not split 50-50, unless that happens to be the most equitable division. Factors that courts consider in dividing marital property include:

  • The duration of the marriage,
  • Each spouse’s role in the acquisition of marital property and in changes to its value,
  • The age, health, and needs of each spouse,
  • Any child custody arrangement, and
  • Whether either spouse has existing obligations from a prior marriage.

The Settlement

The man argued in court that the settlement is nonmarital property because it resulted from his wrongful conviction in 1992, eight years before he married his wife. The trial court agreed with that assessment and ruled in his favor. But his wife appealed, and the appeals court reversed, finding that the lawsuit accrued during the marriage and that the settlement is marital property subject to equitable division under Illinois law.

The man appealed that decision to the Illinois Supreme Court, which declined to consider the case. That means the appeals court decision stands and the settlement will be distributed between the man and his wife in their divorce proceedings.

Reach Out to Us Today for Help

The talented Naperville family law attorneys at the Roscich & Martel Law Firm, LLC, can guide you through the divorce process and help you secure an equitable division of marital property. Contact us today for a free consultation.