Property distribution in a divorce case is an area which is often misunderstood, not only by divorcing parties, but also by attorneys who do not practice in the domestic relations division. As a general rule, property acquired by either spouse prior to the marriage is considered non-marital property and will therefore be assigned to the spouse to whom the property belongs. Property acquired by either spouse subsequent to the marriage is considered marital property and is subject to division. However, there are certain exceptions to this general rule. Pursuant to Illinois law, the following property (even if acquired by a party during the marriage) is considered non-marital property:
(1) property acquired by gift, legacy or descent;
(2) property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, legacy or descent;
(3) property acquired by a spouse after judgment of legal separation;
(4) property excluded by valid agreement of the parties;
(5) any judgment or property obtained by judgment awarded to a spouse from the other spouse;
(6) property acquired before the marriage.
Pension funds, like other property, acquired subsequent to the marriage are considered marital property. However, unlike other types of property, certain portions of a pension fund may be non-marital and therefore not subject to division. The portion of the pension fund subject to division is the increase in the value of the funds from the date of marriage to the date of judgment for dissolution of marriage.
Property division does not have to be equal. As provided by Illinois law the court will consider several factors in its determination of appropriate equitable division of property. The relevant factors include the contribution of each party to the acquisition and preservation of property including the contribution of a spouse as a homemaker, the dissipation by either party of the property, the value of the property assigned to each party, the duration of the marriage and the relevant economic circumstances of each party.
If you have questions regarding distribution of property and/or allocation of debt or wish to discuss your particular case, please feel free to call The Law Office of Catherine M. Byrne at 312-637-5356.