Can Separate Property Accidentally Become Marital Property?

 Posted on September 16,2024 in Divorce

The division of marital assets is often one of the most contentious aspects of a divorce, and when a court must determine whether assets are marital or separate, spouses may become even more antagonistic. When a divorce is imminent, both spouses may be wondering whether their separate property will remain theirs alone. While the rules about marital vs. separate property in Illinois seem fairly clear, the lines are often blurred by how the married couple treats those assets during the marriage.

If you have questions regarding whether your separate property is really yours or how your marital property will be divided, it is time to speak to an experienced Geneva, IL property division attorney from Serrano Hanson. While we are a full-service law firm, we have a smaller firm's commitment and personal attention, forming the basis for strong client relationships.  

What Makes an Asset Separate Property in Illinois?

Illinois law considers the following types of property the separate property of one spouse:

• Assets acquired by one spouse prior to the marriage

• Inherited property

• Property received as a gift

• Property received by one spouse as a result of a court judgment awarded from the other spouse

• Any property specifically excluded as a result of a prenuptial or postnuptial agreement

• Income from any of these types of property or the increase in value of those properties, as long as the income or appreciation is not due to a spouse’s personal efforts.

As an equitable division state, marital assets are divided fairly, although they may not be divided equally. Generally, any property acquired during the marriage is considered marital property, although there are exceptions.

How Can a Separate Asset Inadvertently Become a Marital Asset?

Sometimes, separate property can deliberately be converted to marital property. For example, if one spouse purchased a home before the marriage, he or she might add the spouse to the title, making the house a marital asset. Other times, a spouse may believe an asset remains his or hers alone, only to find out that the law considers that asset a marital asset to be divided. Some ways this can happen include:

• Asset commingling

• Contributions by one spouse to the other spouse’s separate property

Asset commingling is usually not done with the clear goal of making the property a marital asset. If one spouse owned a house before the marriage, and marital funds were used during the marriage to improve the property, then at least a portion of the house would be considered a marital asset.

A bank account that either spouse had before the marriage would remain separate unless the other spouse is added to the account or if marital money is put in and taken out of it. Even if the bank account remains in the one spouse’s name and the paycheck of that spouse – which is a marital asset – is placed in that account every payday, the account becomes, at least partially, a marital asset.  It can be difficult to claim that a certain portion of the money belongs only to one spouse unless the pre-marriage funds are somehow segregated from other funds.

Contributions by one spouse to the other spouse’s separate property can also turn at least a portion of the property into marital property. If one spouse inherits his or her parents’ home, it is, in theory, separate property. Suppose the other spouse is a building contractor who works extensively on renovating the home. During a divorce, the contractor spouse is entitled to reimbursement for his or her work or a portion of the value of the home.

Contact a Kane County, IL Property Division Lawyer

It can be shocking to find that property you believed was yours alone is marital property, subject to a split under Illinois's equitable distribution laws. Having a Geneva, IL property division lawyer from Serrano Hanson who understands asset division laws and can guide you through the process with the best outcome possible is extremely beneficial. Our attorneys have a deep understanding of what our clients are going through and will always provide relevant legal guidance. Contact Serrano Hanson at 630-844-8781 to schedule an appointment. We are fluent in Spanish and English.