One of the most challenging processes of divorce is property division. Dividing up a couple’s life—deciding who gets to keep the physical manifestation of this memory; who gets to keep the proceeds from the sales of these would-have-been heirlooms—is one of the most emotionally wrecking stages a divorcing couple must go through. Illinois is an equitable distribution state, meaning that both members of the couple will get a fair share during a divorce, regardless of who decided that the divorce was necessary or if either spouse was at fault. It also means that just because you were the primary earner, does not mean that you will walk away from the marriage with more money or assets. All the couple’s property is considered as either marital or non-marital property. The loose definition of each is whether the property was acquired before or during the marriage.
One tricky type of asset to determine as either marital or non-marital are personal inheritances. If a person’s parent dies, for example, while he or she is married and she inherits a lump sum from her parent, is it considered marital property? Unfortunately, according to the American Association of Matrimonial Lawyers, this is determined by actions the receiver takes during the marriage, and cannot be rectified during divorce proceedings. If the inheritor deposits or co-mingles the inheritance with other types of earnings—including income earned, even if it is in a private account to which the other spouse does not have access—then it can be considered marital property.
The key to determining marital property is to consider all your assets, including a personal inheritance, as separate from the marriage. Any paycheck you receive while married will be considered for equal property division during divorce. If you receive an inheritance, then, be sure to put it into an account separate from your paychecks, and that your spouse does not have access to it.
If you or someone you know is considering divorce, the most important step is to seek legal counsel. Do not go through it alone. Contact an experienced Batavia, IL family law attorney today.