Separate, Marital, and Commingled Property in an Illinois Divorce

 Posted on October 06, 2022 in Property Division

St. Charles divorce lawyerWhen a married couple decides to end their marriage, one of the decisions that will have to be made is how their assets and property will be divided. Illinois is an equitable division state, which means that all the couple’s assets will be distributed equitably and fairly, which may not necessarily mean equal. In order to successfully and fairly negotiate a divorce settlement, it is important to understand the different types of assets and property you and your spouse may have.

Separate Property

Separate property is that which one spouse owns as an individual. In an Illinois divorce, the courts do not include separate property in any assets or property that needs to be divided as long as those assets or property remain separate during the marriage. Generally, separate property can include:

  • Any assets or property the spouse had prior to the marriage
  • Any income or profits that the spouse gains from separate property – i.e., rent
  • Any property that the spouse purchased with their separate assets
  • Any gifts or inheritances from third parties received by the spouse during the marriage

Marital Property

Marital property is that which the spouses acquired during the marriage. These are the assets that are included in the final divorce settlement and generally include:

  • Property purchased by either spouse paid for with funds earned during the marriage
  • Wages earned by both spouses during the marriage
  • Businesses started by either spouse during the marriage
  • Contributions made to either spouse’s pension plan during the marriage

Commingled Assets

While separate property and marital property may seem fairly cut and dry, there are many situations where the lines blur – especially if the couple has commingled assets, which essentially means a combining of assets.

For example, in a situation where one spouse owned a home prior to marriage and that is where the couple lived during the marriage, there is a high chance of commingling assets if marital funds were used to pay the mortgage, make improvements, and pay other expenses that all result in an increase in the value of the home. Although the home itself would remain the owner spouse’s property in a divorce, the other spouse could be entitled to a share of the increased equity that has built up in the property during the marriage.

Call a Kane County Divorce Attorney for Legal Assistance

If you are ending your marriage, make sure you have a dedicated St. Charles divorce lawyer advocating for you and protecting your financial future. Call Shaw Sanders, P.C. at 630-584-5550 to schedule a free consultation.


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