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What is Separate Property?

Several important issues must be addressed in a divorce, from spousal and child support to property division. These issues all have the potential to be quite contentious due to the inherent complexities that come with fairly dividing a couple’s life, especially when you take into account the emotional weight of the situation. When it comes to dividing property, there are two types, one of which ends up on the chopping block, while the other is to be left untouched. They are known as marital property and separate property.

Marital Property

Courts do not have authority over separate property, which is why the first order of business in property division is to determine which assets and debts are separate or marital. Generally, all property, assets, and debt acquired throughout a marriage are considered marital property. If a piece of property was acquired prior to the marriage, but the other spouse contributed to an increase in its value, this increase would also be considered marital property. Spouses can also convert separate property into marital property, or vice versa, or specify property as marital or separate in a prenuptial or postnuptial agreement. All marital property is equitably distributed in the state of Illinois in the event of a divorce.

Separate Property

Some states differ in details, but separate property typically only includes:

  • Property owned by either spouse prior to the marriage
  • Inheritance received by either spouse prior to or during the marriage
  • Gifts received by either spouse from a third party, such as a friend or family member
  • Payments received for pain and suffering in a personal injury claim

All other property acquired during a marriage is typically considered marital property, regardless of how the property is titled or which spouse owns it. This means even assets such as your 401(k) or stock options will also be equitably distributed as marital property, despite it being solely in your name. If separate property mingles with marital property, it might also be subject to division.

For example, if you re-title the condo you purchased while single to add your spouse as a co-owner, this property might be considered marital property in a divorce. If you deposited the inheritance you obtained from your parents into a joint bank account, those funds might also be considered marital property. This is often referred to as “commingling.” Some spouses might do this intentionally while others commingle assets without even realizing the consequences of such actions. If spouses are unable to decide what belongs to whom, the decision will be left in the hands of a judge who will determine whether any or all of the commingled property was a gift to the marriage or if the original owner should be reimbursed partially or fully.

How Does a Judge Decide?

If a judge must determine whether property is separate or marital, he or she will consider several factors, which include:

  • Prenuptial agreements
  • The duration of the marriage
  • The age, health, and station in life of each spouse
  • Whether or not a spouse will receive spousal support
  • The occupation, vocational skills, and employability of each spouse
  • The value of property assigned to each spouse
  • The economic circumstances of both spouses
  • Contributions made to the acquisition, preservation, or increased value of the marital property, including domestic duties
  • The needs and liabilities of each spouse
  • The obligations of either spouse from a prior marriage
  • Custodial arrangements for children of the marriage
  • The tax consequences of dividing the property

If a couple is able to reach an agreement on separate and marital property without taking their case through litigation, they might stand a better chance at obtaining an agreement that is favorable for both of their needs and goals. With the assistance of your attorney and a mediator, you and your spouse might be able to accomplish this.

Property Division Attorneys in Illinois

Asset distribution is a highly contested issue and heavily litigated aspect of divorce. Finding a resolution to this can be time-consuming and slow the entire divorce process down when spouses refuse to budge on a compromise. If you are in need of representation for your divorce to assist you throughout the property division process, contact the skilled and experienced attorneys at Wakenight & Associates, P.C. Our Illinois attorneys are extremely familiar with state divorce laws and will be able to help you protect the possessions you value most while coordinating an asset distribution plan that is both fair and beneficial for your entire family.

No two divorces are alike, and family situations make each distribution dramatically different. However, some of the most common and important assets in a divorce usually include cars or other motor vehicles, homes or apartments, real estate, investments, financial assets, retirement and saving accounts, intellectual property, insurance policies, and pets. To ensure asset distribution is fair, you must disclose all of your assets to the courts. Failing to do so might lead to serious consequences. You could face legal punishment, be held in contempt of court, or jeopardize your share of the marital assets.

It is crucial for you to seek the skilled and experienced assistance of a property division attorney in Illinois to ensure your best interests are protected and you do not make any costly mistakes along the way.

To speak with one of our distribution attorneys today, call us at (888) 351-2843 to schedule a consultation.


Illinois Divorce Attorneys

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