The Illinois Marriage and Dissolution Act determines whether your and your spouse’s property is marital or non-marital. Marital property is property purchased during the marriage or in contemplation of marriage. Anything purchased during the time of the marriage, whether it is in your name or not, is presumed to be marital property.
If you believe that your property is non-marital and should be awarded to you, even though it was purchased during the marriage, you can override this presumption by showing that you can trace the source of the funds used to purchase the property — e.g., the money came from an inheritance, and you kept the property solely in your name. In other words, you have not “commingled” the property with your spouse. If you can override the presumption, that property could be awarded to you as your non-marital property.
In Illinois, we do not have a 50/50 split of the property, but what we call an “equitable distribution.” You could received 75% of the property, or only 25%. The court looks at many factors to determine how much you should receive. The court first awards to each party his or her portion of the non-marital property, and then it divides the marital property pursuant to the factors described in the statute. Along with the division of the marital property is the division of the marital debt. Marital debt, like marital property, is that which is acquired during the marriage. All the credit-card debt, mortgages, and the other debts are marital if they were acquired during the marriage and need to be divided accordingly.
About the author of this Illinois Divorce FAQ:
Kimberly J. Anderson is a partner with family-law firm Anderson & Boback in Chicago. She has training in collaborative law and occasionally serves as a child representative throughout Cook County.