Defining property ownership in divorce

On behalf of The Walters Law Group, Ltd. posted in Divorce on Monday, June 17, 2013.

Understanding the difference between marital and non-marital property is crucial to determining the best individual course of action in a divorce. As an equitable distribution state, Illinois courts distribute all marital property equitably, or fairly, although not necessarily equally.

Most property acquired during the marriage is considered marital property, regardless of who owns it or how title is issued. Therefore even if only one spouse is named as the owner, both spouses have an ownership right in it as marital property.

Non-marital property is that which was obtained before the marriage, provided there is proof such property remained separate throughout the marriage. The following are generally considered non-marital property – property owned by either spouse prior to the marriage, an inheritance received by the husband or wife (either before or after the marriage), a gift from a third party and payments from the pain and suffering portion in a personal injury judgment. In some cases, non-marital property can be transformed into marital property if it is combined with marital property. Furthermore, the appreciation in value of non-marital assets may be considered marital property if the increase was due to the personal effort of a spouse.

In determining an “equitable” distribution, courts look at a variety of factors. In addition to the financial situation of each spouse, courts consider such things as the length of the marriage, pre-marital contracts, the health of each spouse and personal and financial contributions made by the parties. How assets are defined is not as straightforward as it may seem. Consulting with a divorce attorney will help parties know where they stand and how to approach the separation of assets in a divorce.

Source: HuffingtonPost Divorce, “Understanding how assets get divided in divorce“, Jeff Landers, June 14, 2013