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Kane County Non-Marital Property Protection in Divorce Lawyers

Kane County Non-Marital Property in Divorce Lawyers

Attorneys to Secure Your Premarital Assets, Inheritances, and Gifts in a Marital Settlement Agreement in St. Charles and Geneva

A common concern in divorce is whether a particular asset will be considered marital property or non-marital property. You might wonder: Will my family heirlooms have to be appraised and my spouse given a "fair share" in the divorce? What about the IRA that I owned prior to my marriage?

At Weiler & Lengle P.C., we understand how confusing it can be to understand which of your assets are legally considered "marital property" that must be divided fairly between you and your spouse and which are considered "non-marital property." As experienced divorce attorneys, we will help you through the process of listing all of your and your spouse's assets and designating each asset as either marital or non-marital property.

How Illinois Law Defines Marital vs. Non-Marital Property

Illinois law 750 ILCS 5/503(a) defines non-marital property as property acquired prior to your marriage, by inheritance, or by gift, including any income derived from the property and any increase in the value of the property during your marriage. In addition, specific assets can be designated as non-marital property by an agreement made between you and your spouse, such as a premarital or postnuptial agreement. Non-marital property is not subject to division in a divorce. Rather, each party retains their own separate non-marital property.

All property acquired by either spouse after the marriage and before the final divorce decree is presumed to be marital property. Per Illinois law 750 ILCS 5/503(b)(1), this includes non-marital property which was transferred into some form of co-ownership between the spouses.

Note, however, that special rules apply to each spouse's retirement accounts and pension benefits. Illinois law 750 ILCS 5/503(b)(2) states that all pensions, defined benefit plans, defined contribution plans such as 401(k) accounts, and individual retirement accounts (IRAs) which either spouse acquired or participated in during the marriage are presumed to be marital property.

Right to Reimbursement for Personal Efforts

Under Illinois law 750 ILCS 5/503(c), if you contributed significant personal effort toward improving a non-marital property that substantially increased the value of the property or toward generating income from the property, you have the right to be reimbursed for those efforts as part of your divorce settlement 

For example, suppose your spouse owned a rental property prior to your marriage and never added your name to the deed. During your marriage, your spouse kept a separate bank account for the property, keeping the rental income separate from your joint accounts. Thus, the asset and its income remained the separate property of your spouse. However, during your marriage, you spent many hours making improvements to the rental property that increased its value by an estimated $10,000. You also acted as the property manager, performing tasks such as signing up tenants, collecting rent, and overseeing repairs. In the divorce, your spouse retains sole rights to the property, including any increase in value and income produced. However, in the division of marital assets, you may be compensated for your personal efforts.

Commingling of Marital and Non-Marital Property

There are many situations in which property owned prior to the marriage becomes commingled with the marital estate. You should consult with your attorney to determine whether property that you brought into the marriage has become marital property subject to division or can still be considered your separate property according to Illinois law 750 ILCS 5/503(c).

For example, suppose you owned a home prior to the marriage and sold it at a significant profit. Shortly after your marriage, you used the proceeds to make a $100,000 down payment on a new home for you and your spouse to share. You and your spouse then made mortgage payments on your marital home for the next ten years, at which point you decided to divorce. Because your $100,000 has "lost its identity" and become part of the marital home, that $100,000 is no longer your separate non-marital property. The equity in your home must be divided along with the rest of your marital property "in just proportions considering all relevant factors" as defined in Illinois law 750 ILCS 5/503(d).

Safeguard Your Interests in Both Marital and Non-Marital Property

You can rely on the attorneys of Weiler & Lengle P.C. to ensure that you leave your marriage with all of your non-marital assets intact along with your equitable share of the marital estate. Contact us at 630-382-8050. We serve clients in St. Charles, Geneva, Batavia,  South Elgin and neighboring communities in Kane County.

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