January 12, 2016

Asset Division: Marital and Non-Marital Property

Division of Property

Many, if not most, couples share their property and income after they are married. However, there are some reasons why you might want to keep some of your property separate even after you are married.

How Illinois Views Marital Property

Illinois has a broad view of marital property. With a few exceptions, anything that is acquired by either spouse after the marriage becomes marital property. Even property that is subject to an exception from the marital property laws can still end as marital property if it is commingled.

How Commingling Happens

Commingled property means that one spouse’s separate property is mixed with the marital property. When this happens it becomes marital property. For example, if one spouse had an inheritance that they received after the marriage, that inheritance would not be marital property. But, if that inheritance was deposited into a joint checking account, it has been commingled and may become marital property.

Another common example is with a business owned by one of the spouses before the marriage that both spouses work in after the marriage. Part of the business may become marital property.

Why It Matters

A judge in a divorce case splits marital property equitably. This does not mean it is split equally. Instead the judge is required to review many different factors and then divide the property fairly according to those factors. If you have commingled your property you may end up loosing it in the divorce as part of the property division.

Tools for Keeping Property Separate

One of the best tools for preventing some property from becoming marital property is through a prenuptial agreement. Agreeing to a postnuptial agreement after a marriage can also have the same result. As long as the prenuptial agreement or postnuptial agreements are properly drafted and are not coercive, or otherwise illegal, a judge in a divorce case will respect the agreements.

A third option is to keep the property physically separate. In the case of an inheritance, deposit any funds into an individual account, and not a joint account. Real estate could be held in the name of one spouse only, and not held jointly.

If you have any questions about prenuptial agreements, postnuptial agreements, or any other family law issues, you need to contact a knowledgeable DuPage County divorce attorney. Call the firm of Mulyk Laho Law, LLC today at 630-852-1100 to setup a consultation. Protect yourself and learn about your rights.