Is My Property Considered Marital or Non-martial?

During a divorce proceeding, the court must determine which property is considered marital and non-marital in order to distribute it properly and equitably. Typically, property obtained by either spouse during the marriage is presumed marital property, and property acquired by either spouse prior to their marriage is deemed non-marital property. That said, this rule is not as black and white as one would think.

Just because property is listed in only one person's name does not necessarily make it non-marital property. Having said that, in some instances the way property is obtained and titled can make a big difference. Any property that was procured prior to the marriage could become marital property if it is co-mingled with marital property. One example would be if one spouse owns a home prior the marriage, then later on that home is refinanced in both spouse's names. The home could now be considered marital property, if sufficient marital funds (i.e. the earnings of one spouse are marital) pay down the mortgage and/or pays the real estate taxes and repairs for years.

While property accumulated during the marriage is ordinarily considered marital property (regardless of being in the name of just one spouse), this property can be considered non-marital depending on where the property came from. For example, a gift from one spouse to another, or an inheritance could be considered non-marital property (unless the inheritance is deposited into a joint bank account for more than a brief time).

If marriage is on the horizon there are some steps you can take to protect non-marital property. Do not place your spouse's name on property purchased before the marriage. Do not pay for repairs or restoration on inherited property, or property purchased before the marriage, from a joint bank account or with your marital earnings. Keep property you wish to protect separate, and be sure to keep very good records. A prenuptial agreement might be a great idea too.

Determining marital and non-marital property is complex. For more information specific to your situation, contact Illinois Family Law Attorney Vincent Ruggiero at 630-654-0044 for assistance with your Family Law matters in DuPage, Will, Kane, and Cook Counties.