Illinois law requires judges in divorce cases to equitably divide marital property. Therefore, a judge must first decide which property is marital property and which property is separate or non-marital property. Then, the property will be fairly divided.
However, a fair division does not mean the property will be split equally—a judge will split the property in a way that is fair to both parties under the given circumstances.
Still, the line between what is marital property and what is separate property is not always clear.
Illinois has several categories of property that are not considered marital property. The general rule is that property acquired by one spouse prior to marriage, and all increases in value and income from such property, are not considered to be marital property. Common examples of non-marital property include:
- Inheritances or gifts;
- Property acquired after a judgment of legal separation;
- Property subject to a valid prenuptial agreement; and
- Property acquired by one spouse before the marriage.
How Property Becomes Commingled
However, just because property starts out as non-marital property does not mean it stays that way. Instead of keeping their property separate, couples mix property together with property they jointly own, or with property that one spouse owns as separate property.
Hence, a couple's assets will often be commingled—instead of keeping property separate, couples mix property together with property they jointly own or with property that one spouse owns as separate property.
Commingling can be done intentionally; however, it can also be done without understanding the consequences. Property may be commingled in several ways and may include the following scenarios:
- A separate checking account is used by both spouses for deposits and withdrawals;
- A home one spouse inherited is refinanced and both spouses are put on the title and new mortgage; and
- A piece of land belonging to one spouse is paid for and maintained by both spouses.
When property has been commingled, sorting out how the property should be divided can be difficult.
The Consequences of Commingled Property
When there is any commingled property, the court will often urge the parties to agree on a property division. If the parties cannot agree, a judge has to evaluate all of the circumstances and make a decision.
A judge may decide that the commingled property was a gift to the marriage, which means the property was completely converted into marital property and will be divided with the rest of the marital property. A judge could also decided that the property remains separate, and that one party must compensate the other in part or in full for the value or benefit of the commingled property.
The division of property in a divorce can be complex. Therefore, before taking any action, it is important to consult with a dedicated and experienced DuPage County divorce attorney. Call Sullivan Taylor & Gumina, P.C. at 630-665-7676 to schedule your consultation today.