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Distinguishing marital from separate property

Once you and your spouse choose to divorce, the inevitable question of who gets what arises. Many in your position have come to us here at The Law Office of Jamie Mitchell, LLC with the same question. If you and your soon-to-be ex-spouse have a prenuptial agreement, you likely already know the answer. If you do not, then the issue or marital vs. separate property comes into play. 

Fortunately, Illinois state law has defined what distinguishes these two property types for you. In Section 5.503 of the Illinois Marriage and Dissolution Act, it simply states that property acquired subsequent to your marriage is considered marital property (and thus subject to equitable division). You naturally might take that to mean that anything acquired before you were married is separate property, and for the most part, you would be right. However, there are certain assets that you or your spouse may have come into while married that are considered non-marital property. These include: 

  • Inherited or gifted assets
  • Assets acquired in exchange for property you owned before your marriage
  • Property excluded by the terms of a prenuptial or postnuptial agreement
  • Any award you earn from a judgment against your spouse
  • Property acquired through a loan for which your own separate property was used as collateral

If you and your spouse have previously been granted a legal separation, any property either of you has acquired since then is also considered separate. Plus, the increase in value that your pre-marital assets may have experienced while you were married is also excluded from being marital property. 

Some of your pre-marital assets might also be classified as marital property, such as retirement plan benefits. You can learn more what you may or may not be entitled to in your divorce proceedings by continuing to explore our site. 

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