What Qualifies as 'Marital Property' in a Divorce?

 Posted on November 03, 2016 in Marital Property

Divorce is a word with big meaning but even greater implications. At its most basic, divorce means the end of a marriage and the accompanying legal rights and obligations carried by married couples. However, when a couple initiates a divorce, they also unlock a series of legal issues that must be addressed before their divorce can be finalized.

Among these issues is the division of marital property — a considerable point of contention, given the importance of financial resources and contributions each spouse made to the marriage. Amassing assets requires hard work, time and sacrifice. Consequently, when divorce threatens to dismantle this hard-won structure, parties tend to push back against giving more than is absolutely necessary.

As a reflection of being a no-fault divorce state, Illinois divides property according to what is equitable or just. Only marital property is subject to distribution. Therefore, determining what exactly is marital property in a divorce case is a key issue.

A recent decision by an Illinois Appeals Court expanded marital property to include a settlement for wrongful conviction. While the facts of the case are extremely unique, the case still underscores the necessity of understanding the types of property that qualify as marital assets in order to make an informed decision about property division during negotiations.

What is 'Marital Property'?

Generally, marital property includes all assets and liabilities acquired during the life of a marriage and the time period before a divorce is granted. By contrast, non-marital property is everything obtained by either spouse before marriage or through inheritance or gift from a non-spouse during the marriage.

However, determining what qualifies as non-marital property is rarely a straightforward process. For example, if the title of non-marital property is transferred to the names of both spouses during the marriage, Courts will reclassify the property as marital property. Further, if marital and non-marital property become commingled through financial or personal contributions by a spouse, and this effort greatly enhances the value, the property is considered a gift to the marital estate and will therefore be subject to division in divorce.

Joint debt acquired during a marriage is also divided in divorce; however, a divorce settlement does not relieve a party from legal liability if the debt is not paid. A party can, however, enforce legal rights against the non-paying former spouse for financial injuries suffered.

Property Division Generally

As noted above, Illinois divides property based on what is fair. Hence, even if the parties agree to a property settlement, the Court must approve the settlement. If the Court finds the terms of the settlement unjust and the settlement is therefore not approved by the Court, then the Court can reject the settlement. The Court determines fairness based on a number of factors set out in Illinois law. Factors include the following:

• Each spouse’s role in increasing/decreasing, preserving or acquiring marital and non-marital property;
• Actions by either spouse that dispersed or wasted marital property;
• How long the parties were married;
• The financial resources of each party;
• The age, health, employability and needs of the parties; and
• Custody arrangements for the parties' minor children.

Talk to an Illinois Divorce Attorney

Divorce can be a complicated process, and property division is one aspect that is particularly complex. An experienced Palatine divorce attorney will know the type of information to collect to ascertain what your marital estate contains, and will identify potential issues that could affect the outcome of property division in your case. Contact the Law Office of Nicholas W. Richardson, P.C. for guidance on how to navigate the divorce process, and begin the transition to the next stage of life. Call 847.873.6741 to schedule your free consultation today.