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Who Gets to Keep the House After A Divorce? What is Marital Property?

Posted by Megan Lafata | Mar 11, 2022 | 0 Comments

Who Gets to Keep the House After A Divorce?

During a marriage, couples make countless financial decisions. When spouses seek a divorce, those decisions, and the property acquired, must be divided. Illinois is considered an “equitable property” state, meaning property distribution after a divorce will not be divided equally, instead it will be distributed equitably. Upon divorce, property is separated into what is considered “marital” property and “non-marital” property. In Illinois, it is important to understand this distinction in order to properly distribute property during a divorce.

What is Marital Property?

In Illinois, marital property includes any property or asset that has been purchased during a marriage. It is presumed that property acquired during the marriage is martial property and the spouse seeking to have the property be deemed non-marital must prove that the property is truly non-marital. When determining whether property is marital, courts look at the nature of the property, rather than who holds legal title. For example, retirement accounts are considered martial property, even if one spouse holds legal title to it. If property is deemed “marital,” it will be split among the spouses.

What is Non-Marital Property?

In Illinois, non-martial property includes:

  • Property acquired by one spouse by gift, legacy, or descent;
  • Property acquired by one spouse in exchange for property that spouse acquired before the marriage or by gift, legacy or descent;
  • Property acquired by a spouse after legal separation;
  • Property excluded from the marital estate by a valid agreement between spouses (i.e. a prenuptial agreement);
  • Property acquired by one spouse before the marriage;
  • Property acquired by judgment awarded by the other spouse

Non-marital property can turn into marital property if spouses comingled their marital funds, such as placing their money in a joint bank account. Therefore, it is best to keep non-martial property truly separate and keep detailed records throughout a marriage.

Is Our Family Home Marital Property or Non-Marital Property?
If you and your spouse purchased the home during your marriage, then it will be considered martial property, absent any marital agreement to the contrary. However, if one spouse purchased the home prior to marriage, the home may be considered separate property, but this will depend.

For example, if you and your spouse contributed to the upkeep of the home, or invested in renovations to the home, then the portion of the home paid for with martial funds may be considered martial property for purposes of property division.

Property division is one of the most important aspects throughout the divorce process and understanding the nature of your property can be very challenging. The attorneys at Lafata Law are here to help. For a free consultation, call 630-481-6633.

About the Author

Megan Lafata

Megan is the founder of Lafata Law LLC and former felony prosecutor. Megan is passionate about advocating for the rights of her clients and their families. 


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