Marital Property vs. Non-Marital Property

 Posted on May 08, 2015 in Family Law

The decision to divorce is rarely an easy one. However, for many couples such a decision may represent the best alternative to an unhealthy and unhappy marriage. Whether a couple chooses to divorce based on the actions or inactions of one spouse, or simply to due the parties' growing incompatibility, many of the considerations during the divorce process remain remarkably similar. One of the most contentious of these is often the division of marital property and assets.

Equitable Distribution

Under Illinois law, a divorcing couple's marital property is to be divided equitably between the parties based on a consideration of the circumstances of the marriage and divorce. Equitable distribution does not guarantee that each spouse will be allocated half of the marital assets, however. It means that the negotiation or the finding of the court regarding property division should be fair and appropriate, whatever that is determined to be. Factors to be considered in establishing a fair arrangement are included in the Illinois Marriage and Dissolution of Marriage Act.

What Property Gets Divided?

The first major step in a property division negotiation or action is determining what constitutes marital property and is, therefore, subject to distribution. Marital property is generally considered to be any property or asset that was acquired by either spouse during the marriage. This includes prior-owned property, such as a home, if a co-ownership arrangement was made between spouses while married. In establishing an asset to be marital property, the name on the ownership documentation is much less important than how the asset was acquired and the benefit it provided to the marriage.

Non-Marital Property

Certain assets are considered to be non-marital property and are exempt from property division proceedings. These usually include property acquired by either spouse prior to the marriage, inheritances, and gifts. Additionally, any property identified as not subject to distribution in a valid prenuptial or postnuptial agreement is considered non-marital property.

Some situations may present more complex challenges than others and should be handled with the help of financial and legal professionals. For example, a husband may have established a business prior to getting married, so the business would normally be considered non-marital property. However, if, during the course of the marriage, he invested marital assets in the business, the business may still remain non-marital property, but the value of the invested marital assets would likely need to be offset during the distribution process.

Qualified Divorce Lawyers

If you are considering divorce and would like to speak with a legal professional about the disposition of your assets, contact an experienced Plainfield family law attorney today. At the Law Offices of Cosmo Tedone and Barbara Morton, P.C., we are prepared to help you deal with all aspects of the divorce process, assisting you in achieving the fresh start you deserve.