Not All Assets Are Eligible For Division in Divorce

A common misconception is that a divorce will result in “losing half of everything”. That may be true in some states, but not in Illinois, where marital property is subject to equitable division. Equitable division means that all marital property and liabilities are divided equitably. However, equitably does not necessarily mean there will be a 50/50 split.

“Marital” Is the Key Word

Only marital property and debts are subject to equitable division in a divorce. However, both spouses are entitled to keep 100% of their non-marital property in a divorce. A knowledgeable divorce attorney can help you identify marital and non-marital assets, and then develop a strategy for ensuring they are treated that way in your divorce.

Non-martial, or separate, property includes:

  • Property acquired as a gift
  • Property that was inherited
  • Property acquired prior to marriage
  • Property subject to the terms of a prenuptial or postnuptial agreement

Some property falls into more of a gray area. For example, if one spouse purchased a house before marriage but the other spouse contributed to the mortgage payments, upkeep costs and other household expenses, they may successfully claim that the property is now comingled and no longer non-marital property.

Keeping detailed records of your property is crucial for making sure non-marital property stays that way in divorce. For example, having records such as trust documents can help you demonstrate that property was acquired through inheritance.

The Bottom Line

You may lose half of your marital property in a divorce but, with the help of a skilled family law attorney, you can ensure you keep 100 percent of your non-marital property.