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What Property Can and Cannot Be Divided at Divorce?

Going through a divorce is a challenging and emotionally charged process. One of the most important aspects to consider is the division of property. In Illinois, property division follows the principle of equitable distribution, where marital property is divided fairly but not necessarily equally between spouses. However, it is essential to understand the distinction between marital and non-marital property, as not all assets are subject to division. Below, we will explore the concept of marital property, how property is divided in Illinois, and the properties that are not subject to division upon divorce.

Marital and Non-Marital Property

Marital property refers to assets acquired by either spouse during the course of the marriage, regardless of who holds the legal title. This includes income earned, real estate acquired, retirement savings, investments, and personal belongings. Marital property is subject to division during divorce proceedings.

Non-marital property, on the other hand, consists of assets acquired by either spouse before the marriage or after a legal separation. It can also include property acquired during the marriage by gift or inheritance. Non-marital property generally remains with the spouse who owns it and is not subject to division in divorce.

Property Division in Illinois

In Illinois, property division is governed by the Illinois Marriage and Dissolution of Marriage Act (IMDMA). The court follows the principle of equitable distribution, which means that property is divided fairly based on several factors rather than a strict 50/50 split.

When determining how to divide marital property, the court considers various factors, including the following:

  • Length of the marriage
  • Contributions of each spouse to the acquisition of the property
  • Economic circumstances of each spouse
  • Any prenuptial or postnuptial agreements
  • Custodial arrangements for children
  • Tax consequences
  • Future earning capacity of each spouse

Properties Not Subject to Division in Illinois

While most marital property is subject to division, there are certain exceptions. Under Illinois law, the following types of property are generally not divided upon divorce:

  • Non-Marital Property:
    • Assets acquired by either spouse before the marriage or after a legal separation
    • Property acquired by gift or inheritance, either before or during the marriage, if it has been kept separate from marital assets
    • Property excluded by a valid prenuptial or postnuptial agreement
  • Property Designated as Non-Marital:
    • If non-marital property has been commingled with marital property, it may still retain its non-marital status if it can be traced and identified.
  • Personal Injury Awards:
    • Compensation received for personal injuries, such as medical malpractice or automobile accidents, is generally considered non-marital property.
  • Property Excluded by Agreement:
    • Spouses can enter into agreements that specify certain assets as non-divisible upon divorce. These agreements may outline the ownership and distribution of specific property, overriding the general principle of equitable distribution.

Ensuring Proper Division of Marital Property With Glasgow & Olsson

Divorce proceedings can be complex, and it is crucial to have legal guidance to protect your interests. The attorneys at Glasgow & Olsson have extensive experience in family law and property division matters in Illinois. We can provide skilled representation and help ensure that your marital property is divided properly. Our team will work closely with you to understand your unique circumstances, advocate for your rights, and strive for an equitable outcome.