Identifying Marital Property for Division in Divorce

For many divorcing couples, dividing marital property can be one of the most difficult considerations of the entire process. In some cases, it can create even more bitterness and disagreement than determining arrangements for a couple’s children. In child-related matters, it can be easier to compromise based on the understanding that you and your spouse are doing what is best for your child. When it comes to property, however, the approach is often much different, beginning with disputes over what property should be subject to division in the first place.

What the Law Says

The Illinois Marriage and Dissolution of Marriage Act (IMDMA) sets forth the guidelines that a court must use to determine which assets are considered part of the marital estate and, therefore, subject to division in divorce. According to the IMDMA, any asset acquired by either spouse during the marriage is marital property with several distinct exceptions. These exceptions include:

  • Property received as a gift or inheritance, or the proceeds from the sale of such property;
  • Proceeds from the sale of property acquired by either spouse before the marriage;
  • Property acquired after a judgment of legal separation;
  • The increase in value of otherwise-indicated non-marital property;
  • Property specifically excluded by a valid prenuptial or postnuptial agreement.

Finally, income generated by any non-marital property is also non-marital, unless the income required personal effort by one of the spouses. For example, assume you owned a business for many years before your marriage. Your owning interest in that business would be a non-marital asset under the law. During your marriage, you continue to run your business, investing your personal effort. The income you generate in doing so is considered marital property, as it required your efforts and was acquired in the course of the marriage.

Complicating Factors

As you might expect, determining what is and what is not marital property can be extremely complex and very confusing. This is especially true if you and your spouse accumulated substantial assets prior to getting married. When reviewing your case, the court must carefully consider how and when each asset was acquired and whether it maintained its status as marital or non-marital throughout the marriage. The IMDMA requires the court enter specific findings of fact in support of its decisions when classifying property as marital or non-marital. This will provide you not only an understand of the court’s reasoning, but also a basis for appealing its decision should such an appeal be necessary.

If you have questions about the classification of marital property in divorce, contact an experienced Will County family law attorney. We understand the law and can help you find the answers you need. Call 708-518-8200 for a free consultation with Kezy & Associates today.