Marital vs. Non-Marital Assets

As a general statement, all property acquired by either spouse during the marriage is marital property and is subject to equitable division upon dissolution of marriage. It makes no difference how title to the property is held. If it is marital property, it will be divided in divorce. Although the list is exhaustive, some typical examples of marital property are:

  • Bank, investment and brokerage accounts
  • Pensions and retirement plans
  • Homes, vacation homes
  • Vehicles
  • Household furniture and furnishings
  • Stock and stock options
  • Business and partnership interests

It is the nature of the property, rather than how title is held, that determines whether it is marital property or non-marital property in divorce. Thus, even though a retirement plan is in one spouse's name, if it accrued during the marriage, both parties share a common ownership interest in that retirement plan.

Illinois law defines non-marital property as:

  • Property acquired by gift, legacy or descent;
  • Property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, legacy or descent;
  • Property acquired by a spouse after a judgment of legal separation;
  • Property excluded by valid agreement of the parties;
  • Any judgment or property obtained by judgment awarded to a spouse from the other spouse;
  • Property acquired before the marriage;
  • The increase in value of property acquired by a method listed above;
  • Income from the property acquired by a method listed above, if the income is not attributable to the personal effort of a spouse.

A typical example of non-marital property is inheritance. If one spouse inherits money (even during the marriage) and keeps that inheritance in a separate (solely-titled) account, that property will generally be considered non-marital property. However (and it's a BIG "however"), many actions on the part of the owner of the non-marital property can transform ("transmute") that non-marital property into marital property. The law regarding transmutation is very complex and it is recommended that you seek specific legal advice if you have questions about non-marital property.