One of the primary concerns when it comes to divorce is the division of property. Your home, cars, investment accounts, pension plans, and even pets can all be considered your property. You also need to consider your liabilities: the things you owe, such as debts or payments. Once you’ve developed a list of everything, the court will then address whether these are considered marital or non-marital property.
What is Non-Marital Property?
What classifies as non-marital property will vary based on your state. However, in Illinois, pursuant to Section 503 of the Illinois Marriage and Dissolution of Marriage Act (IMDMA), the most common examples of “non-marital property” are the following:
- Property acquired before the marriage (with exception to retirement plans)
- Property acquired by gift, legacy or decent, or property acquired in exchange for such property
- Property acquired in exchange for property that was owned before the marriage
- Property acquired after a Judgment for Legal Separation
- Property excluded by valid agreement (Pre-nuptial agreement or post-nuptial agreement)
If property was acquired during the marriage and does not otherwise fall into one of the categories for “non-marital” property above, it is subject to division by the Court.
Can My Spouse Touch Non-Marital Property?
Unfortunately, distinguishing between marital and non-marital property is not always easy. Upon their marriage, spouses will often combine non-marital property with marital assets. For example, they may combine funds to create a joint bank account. Alternatively, they may use inheritance to purchase a new home that is put into joint names. In this case, the lines between marital and non-marital are often blurred, or they disappear altogether, thus causing the Court to consider the asset entirely marital.
If you have signed a valid prenuptial agreement (otherwise known as a premarital contract) prior to your marriage, it usually takes all the “guesswork” out of distinguishing between certain pieces of property should divorce or separation occur. See our prior blog post regarding prenuptial agreements and their uses.
How Can I Protect It From Being Included In My Divorce?
If you’re worried about certain assets, there are some steps you can take to ensure they’re protected.
Keep A Detailed Online Record – Tracing can help you keep track of your assets and where they came from. Hold onto any electronic statements, receipts, pay stubs or other transactions. These will not only tell you the amount, but they will also provide the date as well as the original source from which the funds came from.
Hold On To Any Necessary Written Documents – Written documents can be used for the same purpose. Keep track of any paper receipts or account statements as well as other documents such as loan agreements, or titles that distinguish ownership of property to certain individuals. Organize and file them accordingly so they are easily accessible when you need them.
Get Professional Assistance – If you’re unsure of where you stand or how you and your spouse have handled your finances and other assets, seek the help of a financial professional such as a forensic accountant or financial planner.
Keep Non-Marital Assets Segregated – If you inherited money, held property before marriage, or owned a pre-marital business, there are ways to ensure you keep these assets segregated from your other marital assets. Proper segregation of assets allows the Court to more easily determine what is non-marital property and what is marital, as it avoids arguments by one spouse that the asset was transmuted into marital property.
To ensure your chances of keeping what’s yours, enlist the help of a trusted family lawyer. Kristen Strieker has extensive experience helping individuals with their divorce and division of property cases. Kristen will work with you to protect your non-marital property as well as other important assets. Contact her today to discuss any questions or concerns about your unique child support or maintenance situation.
