Property rights in a divorce.

In Illinois, it is presumed that all property acquired in the course of the marriage is marital property even without a showing that it is marital. Plus, marriage is a partnership so all of the wealth, all of the property, and all of the assets that are acquired during the marriage are presumed to be marital property subject to division. Now, there is no real property in many cases, and that’s property that’s acquired either before the marriage or during the marriage such as an inheritance that has not been commuted to marital property. Thus, if someone inherits money and they keep that money in a separate account separated and not co-mingled, then that property will remain non-marital property. If, on the other hand, somebody wins some type of award or inheritance and they commute the property to one account, then they have changed the character from non-marital property to marital property.

So, the best way to think about this is marriage is a partnership. Anything acquired during the marriage is going to be marital property. Aside from an inheritance, if you keep that separated, then that property remains non-marital property. The court ultimately has the determination. If it comes down to a dispute, it is the court that will decide what property is marital, what property is non-marital and how to divide those properties among the litigants. I have had many clients who thought that what they acquired during the marriage was separate simply because it was placed in a non-joint account. It was a shock for a client to learn that his soon to be ex-spouse had a significant interest in his retirement account. For some reason, he wrongfully believed that the funds were his alone simply because the funds were not commingled. I have also had clients who were disappointed to learn that injury proceeds were subject to a division. When in doubt, talk with an experienced attorney in your local area.

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