When contemplating divorce, many questions arise regarding the division of property. The state of Illinois is an equitable distribution state so marital assets are divided fairly and equitably, rather than a straight 50/50 division. Marital property is generally considered all property acquired by either spouse after the marriage ranging anywhere from homes, vehicles, and furnishing to bank accounts, pension or retirement plans,and stock.
Some property may not fall under the category of marital property and is, therefore, not subject to property division. Non-marital property includes property acquired prior to the marriage or may include property acquired by gift, legacy or descent to one spouse regardless of marital status. It may also be property acquired in exchange for property or gifts acquired prior to the marriage. If a prenuptial or premarital agreement exists, property may be excluded as marital property by the terms of the agreement and, of course, property acquired after a judgement of legal separation would not be included in the marital pot.
If the value of the non-marital property increases during the marriage there is generally no consequence in terms of being included as marital assets. However, if income is derived from the non-marital property attributable to a spouse’s effort, it may be included in the division. Furthermore, if non-marital property of any kind is commingled with marital property it may be transmuted to marital property. Because the conditions for transmuting property are complex, it is advisable to seek expert legal counsel to avoid unintended results.