When a couple is going through a divorce, property and asset division is often one of the most important concerns. It can also be a very difficult one, especially if the couple has amassed significant assets and/or property during their marriage. The first step your divorce attorney will take is assessing what should be deemed marital property and what should be deemed nonmarital property. While this may seem fairly straightforward, it is not uncommon for spouses to disagree on what is and is not marital property.

Marital Property Versus Premarital Property

Under Illinois divorce law, property that is acquired and owned during the marriage is considered marital property. However, property that you acquired and owned prior to marriage is considered your premarital property. This property is not considered part of the divorce and should be immediately transferred to the person who originally owned the property. There is one caveat, however, and that is if there was an increase in the value of the premarital property during the marriage, that increase may then be considered a marital possession.

For business owners, the division of marital property required in the Illinois divorce process can be challenging regardless of their spouse’s involvement or role in the business. However, if you and your spouse are business partners as well as life partners, the process becomes even more complicated. In order to ensure a fair outcome that protects your interests, you should work with an experienced divorce attorney who can advise you on the implications of your decisions.

Are Businesses Considered Marital Property in Illinois?

While a business that you owned prior to your marriage may be considered your personal, non-marital property, a business that you or your spouse founded or acquired during your marriage is usually considered marital property, even if the other spouse is not involved. If you and your spouse started or purchased a business together during your marriage, there is no question that it will be an important consideration in the division of marital property, and the same is likely true if your spouse became a partner in a business that you already owned. You may even have a business contract that further defines the terms of your partnership outside of your marital relationship, and such a contract will likely influence your options for dividing the business in your divorce.

Arguments over finances are a contributing factor in many divorces, and when money is already a contested issue, it can be concerning to consider that you and your spouse will have to divide your assets and debts as part of your divorce resolution. However, you may find it reassuring that not all property belonging to you or your spouse is subject to division. In Illinois, anything that is considered non-marital property will most likely stay with the person to whom it belongs.

Identifying Non-Marital Property

While you might take comfort in knowing that you can hold onto your non-marital property during your divorce, it can be a challenge to determine which assets and debts are considered non-marital. Under Illinois law, properties that are often defined as non-marital include:

The decision to file for divorce is just the first step in a long road toward legally ending a marriage. One of the major concerns for couples who are divorcing is figuring out who gets what in the final settlement. Illinois is an equitable distribution state when it comes to dividing marital property in a divorce. However, non-marital property is handled differently. Under Illinois divorce law, both spouses are entitled to keep all of their own or separate assets. Non-marital assets are classified as property acquired as a gift, through an  inheritance, or prior to the marriage, as well as property that is specifically protected by a valid prenuptial agreement. In some cases, disputes can arise if spouses argue over these items.  

Identifying Separate Property 

Distinguishing between marital and non-marital or separate property in a divorce is not always as simple as it may seem. One of the difficulties that can arise when trying to establish a non-marital asset occurs when the spouses have commingled or mixed non-marital and marital funds. Tracing is a method of following the flow of money or assets from their original source to demonstrate that they are indeed non-marital. This requires proof that the original source of the asset came from a gift, an inheritance, or ownership prior to the wedding. 

Proving the non-marital nature of inheritance money may require documents such as wills, trusts, and tax returns. These documents can establish the timing of when a spouse received the inheritance. Next, it must be proven that it has not been commingled with any marital funds, such as put in a joint bank account. If this occurs, then the non-marital asset can be transmuted into marital property, which is subject to division between both spouses.