Division of property is a concern for most couples going through a divorce in Chicago, Illinois. Many individuals know Illinois law requires a divorcing couple’s assets to be divided fairly and equitably. However, many people may not realize this law only applies to property considered marital property. Assets considered separate property do not belong to the marital estate and are not subject to distribution. 

Basic property types 

In general, property obtained during the marriage belongs to the marital estate. It does not matter if only one spouse paid for or used the property. Typical examples of marital property include homes, vehicles, stocks, retirement account contributions and personal possessions. However, any gifts or inheritances that one spouse receives during the marriage are considered separate or non-marital property, according to the Illinois Marriage and Dissolution of Marriage Act.

Any property spouses owned prior to the marriage is also considered separate property. If one spouse exchanges separate property for new property during the marriage, the new property is still viewed as non-marital. If spouses legally separate, property acquired after the date of separation is non-marital. Spouses may designate additional non-marital property through a pre-nuptial agreement.

Determining whether certain assets are separate or marital is fairly simple. However, for the division of more complex property, such as pension plans and commingled assets, divorcing couples will typically need to work with an Illinois divorce attorney to understand how the property should be divided.

Potential complications 

Often, separate and marital property will become mixed together, or commingled, during a marriage. For instance, if one spouse contributes separate assets to obtain marital property, such as a house, the spouse’s assets have become commingled. Illinois law treats separate property that has been commingled into marital property as marital property when assets are divided. However, if a spouse commingles separate or marital property with the other spouse’s separate property, the first spouse may be reimbursed for his or her contribution.

Certain assets, such as pension plans, also require special considerations. To divide these assets, an Illinois court must issue a Qualified Illinois Domestic Relations Order. This order recognizes the right of one spouse to receive a specified amount or proportion of the other spouse’s benefits. These can include retirement benefits, refunds and death benefits.

Some couples may be able to reach an agreement regarding property division on their own, outside of court. However, when valuable property or complex assets such as retirement benefits are being considered, spouses can benefit from working with an attorney. An attorney can provide advice on legal rights and improve the likelihood of a fair settlement being reached.