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Marital vs. Non-Marital Assets
As a general statement, all property acquired by either spouse during
the marriage is marital property and is subject to equitable division
upon dissolution of marriage. It makes no difference how title to the
property is held. If it is marital property, it will be divided in divorce.
Although the list is exhaustive, some typical examples of marital property
are:
- Bank, investment and brokerage accounts
- Pensions and retirement plans
- Homes, vacation homes
- Vehicles
- Household furniture and furnishings
- Stock and stock options
- Business and partnership interests
It is the nature of the property, rather than how title is held, that
determines whether it is marital property or non-marital property. Thus,
even though a retirement plan is in one spouse's name, if it accrued during
the marriage, both parties share a common ownership interest in that retirement
plan.
Illinois law defines non-marital property as:
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1. |
Property acquired by gift, legacy or descent; |
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2. |
Property acquired in exchange for property acquired
before the marriage or in exchange for property acquired by gift,
legacy or descent; |
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3. |
Property acquired by a spouse after a judgment of legal
separation; |
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4. |
Property excluded by valid agreement of the parties; |
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5. |
Any judgment or property obtained by judgment awarded
to a spouse from the other spouse; |
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6. |
Property acquired before the marriage; |
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7. |
The increase in value of property acquired by a method
listed above; |
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8. |
Income from the property acquired by a method
listed above, if the income is not attributable to the personal effort
of a spouse. |
A typical example of non-marital property is inheritance. If one spouse
inherits money (even during the marriage) and keeps that inheritance in
a separate (solely-titled) account, that property will generally be considered
non-marital property. However (and it's a BIG "however"), many
actions on the part of the owner of the non-marital property can transform
("transmute") that non-marital property into marital property.
The law regarding transmutation is very complex and it is recommended
that you seek specific legal advice if you have questions about non-marital
property.
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