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.