Property division is one of the most challenging parts of a divorce. The parties usually need the help of an attorney to separate marital property from non-marital property. Marital property is property acquired during the marriage and is subject to equitable division. 750 ILCS 5/503(a). Non-marital property is property acquired by one party before or during the marriage and kept separate from marital property; it usually remains with the party that owns it. 750 ILCS 5/503(a) (1)-(8).
In Illinois, non-marital property can become marital property. Also known as transmutation, this change can occur because of a gift, marital use or commingling. The change by gift happens when one party willingly turns non-marital into marital property by adding both names on the ownership instrument.
The matter is more complicated when ownership changes due to commingling or marital use. Commingling occurs when non-marital funds are mixed with marital funds, making it nearly impossible or impractical to separate the two. For example, if a spouse deposits inheritance money into a joint account that is used for marital purposes, a judge would likely treat all the funds in that account as marital property.
Change of ownership through marital use occurs when an asset is used extensively for marital purposes. For example, assume that one spouse bought a home shortly before the marriage. After the marriage, the parties use it as the primary marital residence, making mortgage, tax, insurance and other home-related payments together. Because the parties lived in the home and used martial funds to make those payments, any equity is likely marital property even though only one spouse’s name is on the title.
Conversely, a spouse that invested non-marital funds into a marital asset may be entitled to reimbursement. For example, if one spouse used non-marital inheritance money for a home improvement project, it may be entitled to a higher portion of that marital asset.
Illinois transmutation claims and defenses are fact intensive and it is crucial that an experienced family law attorney handle them. At Sullivan, Taylor and Gumina we have extensive experience in making sure that our clients receive competent representation in cases involving division of marital and non-marital property.