When preparing for a divorce, it is important to know the difference between marital property and non-marital property. Most assets acquired by either spouse after the marriage and before a divorce are marital property and are subject to division upon dissolution of marriage. Non-marital property, however, is not divided in divorce. The Illinois Marriage and Dissolution of Marriage Act defines non-marital property in the following way:
- 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 after a divorce
- property acquired before the marriage
- property excluded by valid agreement of the spouses
- any judgment or property obtained by judgment awarded to a spouse from the other spouse
- the increase in value of property acquired by a method listed above
- income from property acquired by a method listed above, if the income is not due to the personal effort of a spouse
If non-marital property is transferred into some form of co-ownership between the spouses, it becomes marital property. It is necessary to be able to prove that property was acquired in a method listed above, so it won’t be considered marital property.
Additionally, all pension benefits are marital property, regardless of which spouse participates in the pension plan, and all stock options, vested or non-vested, are marital property as well. If it can be proven that the benefits or stock options were acquired before the marriage, they will be considered non-marital property and should not be subject to division.