When you got married, you didn’t think about signing a prenuptial agreement. Now that you are contemplating divorce, you are wondering whether the house you acquired before the marriage is still yours. And what about that nice inheritance from your aunt or the business you built up before your marriage? And your father certainly never intended for your spouse to get that savings account he set aside for you.
The determination of what is and isn’t marital property can be tricky in Illinois, but there are some basic guidelines.
Generally, all property acquired during a marriage is marital property regardless of who is on the title. For example, a home purchased during your marriage belongs to both spouses even if only one name is on the deed. Marital property includes pension benefits, stock options, earnings and property purchased after marriage.
But there are exceptions to the "All is presumed marital property" rule.
Any property owned before marriage or received through gift or inheritance remains yours alone, as long as you didn’t comingle it with other marital assets. If your individual property increases in value, that increase belongs solely to you. You can also designate individual property through an agreement such as a pre-nuptial. And once you are legally separated, any property you acquire afterwards is yours.
Property purchased after marriage belongs to both spouses, unless you can prove that you used individual property to acquire the new asset. In that case, a home you bought after marriage would remain individual property if, for example, you bought the home with the proceeds of your pre-marital home. Your pension benefits or stock options after marriage are also marital property unless they came from individual property, for example, a job you had before marriage.
You can turn individual property into marital property through comingling. For example, you and your spouse live in your pre-marital home. Your salary pays the mortgage and, thus, you are contributing marital funds to your individual property. If you instead rented the house, the rent and the home would likely remain your individual property.
If you mixed individual and marital assets to buy marital property, your individual contribution would now be considered marital property. And even if you keep your individual property, you might owe your spouse reimbursement if they contributed their personal efforts, such as by fixing up your old home.
All these rules can be changed by agreement, which is why you might consider a prenuptial agreement if you have sufficient individual property at stake.
If you have questions about this or another domestic relations matter, please contact Zachary W. Williams at 1-312-981-0851 or email zwwlawyer@gmail.com.
