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What's mine is mine, and what's yours is mine, too

Many parts of a divorce can feel like moving targets. We know that child custody agreements can be modified, and that spousal maintenance can be modified. One thing that's almost always permanent is the property division agreement. Naturally, property division arrangements are unique to each marriage. But, as with most things, if the parties can't decide, a judge will.

It's not necessarily a 50/50 split. Under Illinois law, the court can take numerous factors into consideration when determining or approving a property settlement. Still, there are some basic concepts that all couples contemplating a divorce -- or a marriage, for that matter -- should know.

The first is that the property in a property division isn't just tangible property. The term includes furniture, real estate and jewelry, for example, but it also includes investments like retirement plans, stock options and deferred compensation.

Second, in a marriage there are two categories of property: marital and non-marital, or separate, property.

Non-marital property encompasses the following:

  • Property owned by one spouse or the other before marriage
  • Inheritance received before or during marriage
  • A gift received by one spouse or the other from a third party (even a relative)
  • Payment received in a lawsuit for pain and suffering.

Non-marital property only stays non-marital if it remains separate from the other spouse's property. An inheritance, for example, that is deposited into a wife's personal checking account will remain hers. An inheritance deposited into a joint checking account is marital property from that point onward.

Just about everything else acquired during the marriage is considered marital property. It doesn't matter who's on the title to the cabin, if it's purchased during the marriage, it's marital property.

We'll talk more about the subtleties of property division in our next post.

Source: Forbes.com, "Understanding How Assets Get Divided In Divorce," Jeff Landers, 04/12/11

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