LAW OFFICE OF
 JOSEPH J. WALCZAK, P.C.

708.361.3390
FREE CONSULTATION
Law Office of
JOSEPH J. WALCZAK, P.C.

708.361.3390
FREE CONSULTATION
DIVORCE - PROPERTY
WHAT PROPERTY AM I ENTITLED TO IN A DIVORCE?  In Illinois, property is divided into two classes.  Marital Property and Non-Marital Property.  Generally, assuming there is no prenuptial agreement or postnuptial agreement, the parties are entitled to keep their non-marital property and are entitled to and equitable division of their marital property.  Equitable does not always mean 50/50 but often times it comes down to a 50/50 split.  An equitable division comes down to what is a fair division under the facts and circumstances of the case.  It is possible that an equitable division of marital property is 100% to one spouse and 0% to another, but this would be rare.  Any division in between is likely and it is in the judge's discretion to determine what is an equitable division of marital property.  However, the judge does not have the power to award one person's non-marital property to other spouse.

    Marital Property:  Generally, marital property is considered all property acquired by either spouse subsequent to the marriage, except non-marital property. Marital property includes all wages, pensions, retirement accounts acquired during the marriage.  Even a business, dental practice, law practice, physician practice, if acquired or established after a marriage can be marital property subject to equitable division.  The way property is titled does not determine whether property is marital or non-marital property.  For example, if stock is owned in the name of one spouse, or a business or dental practice is owned in  one spouse's name, or vehicle or home is titled in one spouse's name, but the asset or property was acquired during the marriage (not by gift or inheritance, and no prenuptial or postnuptial agreement) that property is likely marital property subject to equitable division by the court regardless of how it is titled or owned.

    Non-Marital Property:  Generally, non-marital property is:
  1. Property acquired by gift, legacy or descent (i.e., gifts and inheritances).
  2. Property excluded by a valid prenuptial or postnuptial agreement.
  3. Property acquired before the marriage.
  4. Property acquired by a spouse after a judgment of legal separation.
  5. The increase in value of the  property in (1-4 above) or the exchange of the property in (1-4 above) for different property.  For example, if you have $20,000 in a stock account and it grows to $30,000 during the marriage, then the increase of $10,000 is also non-marital property (see exception below).  Also, if you have $20,000 inheritance after marriage and you buy a $20,000 car during the marriage and you title it in your name, then the car is non-marital property. (see exception below).  (See Illinois Compiled Statute 750 ILCS 5 et seq).

    Non-Marital Exception:  If non-marital property is commingled with marital property it can sometimes lose its non-marital character and be turned into marital property.  Also, if you put your spouse's name on your non-marital bank account, stock account or other non-marital property, a court could find that the property became marital property under a gift theory or some other legal theory.


DISCLAIMER: THE INFORMATION CONTAINED IN THIS PAGE IS GENERAL AND SHOULD NOT BE CONSIDERED LEGAL ADVICE AND SHOULD NOT BE RELIED UPON BY ANYONE INVOLVED IN A DISSOLUTION OF MARRIAGE OR DIVORCE OR CONSIDERING A DIVORCE. YOU SHOULD CONSULT A LAWYER TO LEARN HOW THE LAW APPLIES TO THE FACTS OF YOUR INDIVIDUAL CASE AND TO PROTECT YOUR RIGHTS.


Illinois family law attorney and estate planning attorney Joseph J. Walczak represents clients in Cook County and Will County and DuPage County, including downtown Chicago, and the Chicago suburbs of Palos Heights, Orland Park. Tinley Park, Bridgeview, Palos Park, Palos Hills, Worth, Alsip, Frankfort, New Lenox, Lemont, Homer Glen and other Chicago suburbs.
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