Property Rights and Division Disputes

DuPage County Circuit Court Courthouse  |  Wheaton, Illinois

In Illinois, in a Dissolution of Marriage proceeding, there are two types of property. One type is "marital property," which is defined as property acquired by the parties during the marriage. Said property is susceptible to division by the Court either by equal division or some other percentage as the Court deems just and proper. The other type of property is "nonmarital property."

This is property owned by a spouse prior to the marriage and kept just in his or her name; or property inherited during the marriage in the given spouse's name and not commingled with the other spouse. As long as the spouse in whose name the property is titled never transfers the property into joint title of both spouses, then the property remains nonmarital property and is not subject to division by the Court.

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An example would be a large inheritance received by one of the spouses in the marriage that is thereafter always kept in that spouse's name and in a separate account and never transferred to an account where the other spouse has rights as a co-owner. If it is transferred to the other spouse creating co-ownership in the property, this is what is termed "commingling" of property. It becomes marital property. Once that occurs, the property may never go back to a nonmarital status.

Other technical areas with regard to property rights. For example, if one spouse receives a workers' compensation award, part of that award is deemed to be nonmarital in the sense that it is an award to the party receiving it to make that party whole, and is strictly a personal right in that regard, not subject to a claim by the other spouse. However, by the same token, part of the award is also considered to be marital property. This particular rule has been developed by case law over a long period of time.