During a divorce in Illinois, one of the most common causes of contention is the division of property. Most couples obtain property and assets that fall in the category of marital property and then must be divided based upon the state’s equitable distribution laws. The lines often become blurred when it comes to separate property, however, as many couples unknowingly comingle non-marital property and create with very complicated cases that could end up in court.
Understanding the difference between marital and separate property
In Illinois, the courts follow some basic guidelines when determining marital property versus separate property. In general, marital property is any property acquired by either or both spouses during the duration of the marriage and separate property is any property acquired by either spouse before the marriage. While almost all property acquired during a marriage is considered to be marital property, there are some exceptions, including the following:
- Gifts
- Inheritances
- Passive income from non-marital assets
In order for these exceptions to remain as separate property, they cannot have been transferred into a joint bank account or titled to both spouses.
The effects of commingling
Often, couples mix their marital and separate property while married. This can result in commingling and can further complicate the process of dividing property. When non-marital property is used by both spouses or is used as a contribution to the marriage, it could become subject to a right of reimbursement if the court decides that there is significant proof. During property division, the receiving spouse could be required to pay reimbursement if there is clear and convincing evidence suggesting that separate property was used for the benefit of both parties.
According to Illinois law, comingled property is considered to be marital property when it cannot be distinguished from the original non-marital property. For example, if one spouse has a separate bank account, but allows the other spouse to deposit paychecks into it or pays bills out of it, there is no way to distinguish the original non-marital funds that existed prior to the marriage.
When separate property becomes marital
Whether the change was done intentionally or was simply an effect of the marriage, separate property that becomes marital is subject to equitable distribution under Illinois law. Individuals who want to protect their non-marital property should pay close attention to how and where it is used in conjunction with any marital property. Working with an attorney is a useful was to preserve the classification of separate property before, during and after a marriage.
