What Assets and Debts Are Included as Marital Property?

Section 5/503(b) of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) defines marital property as consisting of all property acquired by either spouse during the marriage and before the entry of a Judgment of Dissolution of Marriage unless the property  falls in one of the eight exceptions listed in Section 5/503(a). Non-marital property transferred into some form of co-ownership between the spouses is also presumed to be marital property. Employment income of both spouses during the marriage is generally marital income.

Property that May Not Be Part of the Marital Estate

Section 5/503(a) of the IMDMA provides eight classifications of Non-Marital Property, which generally include:

  • property acquired before the marriage,
  • gifts, legacies, descents;
  • certain property acquired in exchange for other non-marital property;
  • property excluded by valid agreement of the parties; and
  • certain increases in value and income of Non-Marital Property.

While these classifications may sound straight-forward, the application is often not straight-forward.  Often, previously separate Non-Marital Property is commingled, such as when a gift or inheritance is placed into a joint banking account. When commingling occurs, there is a presumption that one spouse is making a gift to the other spouse (and marital estate); this presumption must be overcome by clear and convincing evidence.

Marital Debt

While the initial focus of marital property is typically on identifying and making sure that a spouse receives his or her share of the marital assets, and equally important aspect of property division is who will be liable for the marital debt.

If you and your spouse have joint credit cards, you will both be legally liable for payment of this debt.  The credit card companies will not recognize an agreement between spouses whereby one spouse agrees to pay off the credit cards.  If there is a default, the credit card companies will seek to collect from both spouses, regardless of any agreement.

Nonetheless, it is important when dividing marital assets to determine how debt will be discharged (or paid).  While a divorce settlement does not relieve a spouse from liability against the credit card company, a spouse will have legal rights against the other spouse if the other spouse does not make any payments required under the divorce settlement.

Similarly, other debts must be considered, the largest of which is often a mortgage on a home.

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