Illinois Marital Property Laws

Illinois, like most states, is an equitable distribution state. In a divorce or legal separation, all marital property gets divided fairly, but not always equally. In Illinois, all property acquired during the marriage becomes a marital asset.

A few states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin) are community property states. In these states, courts divide marital property 50/50 in a divorce. While equitable distribution states differ in property classification, all use similar factors when dividing the marital estate.

If the parties have a prenuptial or postnuptial agreement, Illinois courts will follow the parties’ property division during the divorce proceeding. Otherwise, the judge must decide the property classification and allocation.

Marital Property vs. Separate Property

In general, all property acquired during the marriage is marital property. There’s a presumption that couples intend this property to be part of the marital estate. Marital property can include:

• The marital home and other real estate
• Wages and income earned during the marriage
• The value of pension plans, retirement accounts, and 401(k)s which accrue during the marriage
• Vehicles in either spouse’s name, if purchased with marital funds

Unlike many other states, personal injury settlements, employment lawsuits, and similar settlements are marital property if the incident that led to the legal action occurred during the marriage. If one spouse suffered a car accident during the marriage, any insurance settlement or other financial recovery becomes part of the community property.

Marital debt is also considered marital property. Since equitable distribution divides property fairly, courts may assign debt to whichever spouse acquired it. For instance, the balance due on a car purchased by both spouses is split between both parties. But a credit card debt run up by one spouse goes to that individual.

Separate property is all property acquired before the marriage, after legal separation, and during the marriage if acquired:

• By gift, bequest, or inheritance
• During the marriage with separate funds
• By gifts from one spouse to the other
• By an increase in the value of non-marital property (such as a business or rental income), unless the value increased due to the efforts of the other spouse, who may be due reimbursement from the marital property

Transmutation

Non-marital property may become marital property if it mingles with the marital estate. Transmutation involves a change in the character of the non-marital asset. For instance, money taken from one spouse’s separate bank account, placed in the household account, and used to pay household bills has “changed character” and become a marital asset. Money placed there to prevent overdrafts and withdrawn when other funds arrive has not “changed character” even if spent before the funds arrive.

Illinois divorce laws about transmutation can be confusing for everyone involved. If there is any doubt about the source of funds or a party’s contribution to the marital assets, parties should contact a divorce lawyer.

Illinois Marital Property Laws

Unless the parties have a written agreement, Illinois courts divide property equitably during the divorce process. The judge may consider relevant factors, including the:

• Age and health of the parties
• Length of the marriage
• Relevant economic circumstances of each spouse, including vocational skills, education, employability, and work experience
• Child support obligations from this or a prior marriage
• Debts and liabilities from this marriage
• Contributions of each spouse to the marital estate
• The tax consequences based on the value of the property awarded to each spouse

Note: State laws are subject to change through the passage of new legislation, court rulings (including federal decisions), ballot initiatives, and other means. FindLaw strives to provide the most current information available. You should consult an attorney or conduct your own legal research to verify the state law(s) before making any legal decision.

Get Legal Advice About Illinois Marital Property Laws

Distribution of property is one of the most contentious parts of a divorce. If you and your spouse don’t have a preexisting agreement, the judge will divide your property for you. If you don’t want that to happen, contact a local family law attorney for assistance.