Property Division and the Distinction between Martial and Non-Martial Property

Property Division - Skokie IL

By: M. Scott Gordon & Associates

Let’s Discuss Property Division and the Distinction between Martial and Non-Martial Property.

All Property acquired during the marriage (other than non-martial property as said forth below) is considered Marital Property, and should be divided by the court “equitably.” 

When considering Property Division after a marriage has ended, the term “Equitably” is not the same as “equal”. Illinois courts have broad discretion in dividing marital property, and they have not hesitated to divide that property on an unequal basis, typically where the facts make such a division seem appropriate. 

When making these decisions, courts and attorneys are guided by case law and Section 503 of: The Illinois Marriage and Dissolution of Marriage Act. Section 503 states specifically that marital property shall be divided between “without regard to marital misconduct in just proportions.” This is important to understand, as many people believe that the non-financial misconduct of their spouse during the marriage affects how property is distributed. The reality is the law instructs judges to not consider martial misconduct when dividing Martial Property. 

What do judges consider when deciding on how to divide martial property in “equitable manner”?

Some factors include the following:

•  Duration of the Marriage 
•  Relevant economic circumstances of each party involved 
• The age, Health, station, occupation, income, and needs of each party 
• Division of property in addition to any maintenance 
• Reasonable opportunity of each party for future acquisition of assets and income
• Tax consequences of the property division for each party.

It should also be remembered that a court has the power to determine if any spouse has “dissipated” any property. Broadly speaking, “dissipation” is when on party spends marital assets on purposes unrelated to marriage. For example, when one party spends money on their new boyfriend or girlfriend out of a joint bank account that is considered a martial asset. It is important to keep in mind the concept of “dissipation” and how it is much broader and is designed to protect the innocent spouse from the wasteful spending of the other spouse. The court can look back up to 5 years prior to the filling of the divorce case or 3 years after the party claiming dissipation knew or should have known of the dissipation.

What is Non-Martial Property?

Now that we understand that all property acquired after the marriage is considered Marital Property (except as explained in this blog) let’s look at what makes up Non-Martial Property. Some examples of Non-Marital Property include:

• Property acquired by a gift or inheritance
• Property acquired before the marriage 
• Property acquired after a judgment for legal separation 
• Property excluded by valid agreement of the parties 
• Property acquired by judgment from party to the other.

 The increase in value of these properties is also non-marital, although contributions of marital assets will need to be reimbursed.

It is important to remember that non-marital property can be converted into marital property. For example, a home acquired by one spouse before the marriage can be converted into marital property if the spouse changes title into the names of both spouses. That property would now be considered a marital asset. The court sees this actions as a gift to the marriage.

If you have questions regarding Property Division and what is considered Martial and Non-Marital Property contact the attorneys at M. Scott Gordon & Associates at 847-329-0101 or 312-360-0250. You can also visit our website at http://www.familylawadvocate.com/ for more information.