Non-Marital Property in Illinois Same-Sex Divorces

 Posted on September 16, 2024 in Marital Property

As the legal landscape around marriage continues to evolve, same-sex couples in Illinois are facing unique challenges in divorce proceedings, particularly regarding non-marital property. With the historic changes in the types of legal marriage over the last decade plus, many same-sex couples find themselves marrying later in life, often leading to a significant accumulation of non-marital assets before they say, "I do." If you are seeking to dissolve your same-sex marriage, an Illinois divorce lawyer can assist you in ensuring you understand the asset division process, including how non-marital property is handled.

Marital vs. Non-Marital Property

In Illinois, property division during divorce starts with the classification of assets. Non-marital property is made up of assets owned by one spouse prior to the marriage, as well as gifts or inheritances received by one spouse during the marriage. For same-sex couples who marry later in life, this distinction can have major implications. It is essential to identify what assets are non-marital to ensure fair division if the couple splits. For couples who have been together for many years prior to getting married, there can be strong disagreements about how property should be classified. 

Late Marriages and Accumulated Assets

Because it was not possible for many gay couples to marry until 2013, many couples delayed marriage until later in life. This delay often results in substantial non-marital property at the time of marriage, including homes, retirement accounts, and other investments. Even though both partners may have contributed to the value of these assets, unless they were listed as belonging to both spouses, they will generally remain the property of the spouse in whose name they belonged after divorce. 

For example, if one partner purchased a home before the marriage and that home is deemed non-marital property, it may not be subject to division during a divorce even if the other spouse lived in the home and contributed to its upkeep for many years before getting married. However, Illinois law also considers how marital efforts contributed to increasing the value of non-marital property, so the contributions of the non-owner spouse during the marriage will matter. 

Legal Protections and Prenuptial Agreements

Given the potential complexities involved, legal counsel is vital for same-sex couples in the event of a divorce. Same-sex couples who signed a prenuptial agreement will be relieved to know that such legal documents can play an important role in outlining what constitutes non-marital property and protecting assets accumulated prior to or during the marriage. Prenuptial agreements are usually enforceable and can be a great way for couples who have been together long before marriage to decide what to do with shared assets during divorce. 

Transparency During Asset Division in a Same-Sex Divorce

Transparency about assets is essential in any divorce. Both partners must disclose their assets honestly to ensure equitable division and avoid future complications. Courts in Illinois prioritize fairness, but disputes arise when the ownership of property is unclear. This is especially true when couples have been together for many years before they were married. 

Property that was owned by only one spouse before can actually become marital property if it is mixed together with marital property. For example, if one spouse inherited money from a parent and then placed that money in a joint account, it can be hard to later separate how much of that money is marital and how much is separate property. Even during the difficulty of divorce, it is important for spouses to be honest about their intentions with their finances. Hiding property or covering up its true ownership can prolong the divorce process and result in less property for everyone. 

Contact Our Rolling Meadows, IL Same-Sex Divorce Attorney

With the right information and legal support from the Mt. Prospect, IL same-sex divorce lawyer with The Law Office of Nicholas W. Richardson, P.C., you can tackle every aspect of divorce knowing that you are protected under the law. Call 847.873.6741 for a complimentary consultation.