When two people are married, most of the assets they acquire throughout the course of their marriage are considered marital property. During a divorce, a court will determine whether certain assets are considered marital or non-marital.

If an asset is determined not to be marital property, the court has no legal authority to award part of the asset to the non-owner spouse in a divorce. Generally, assets acquired by inheritance, gift, legacy, or descent are not considered marital property in Illinois, but the way an asset is treated after the inheritance may render it marital property.

What is an Inheritance?

Inheritances are monies, properties, or other assets that are given to someone through an estate planning document, like a will, or through intestate succession. If someone inherits an asset while they are married, it is generally considered non-marital property, as long as it is possible to prove that the asset was specifically given to the recipient by the deceased.

You have many important decisions to make about your marital home during a divorce, including whether you should sell it. Some spouses decide that selling their home is their best option if neither of them needs a home of that size or would be able to afford the home on their own. Selling the home could give both of you a significant amount of money to use in starting your post-marriage life. If you decide to sell your marital home, choosing an experienced real estate agent will be important in ensuring a successful sale that helps your divorce. There are characteristics that a real estate agent needs when selling a home for divorce:

1. Neutrality: Because you will be using the same real estate agent, you need to feel that the agent is treating you equally. Showing favoritism to one side causes the other side to distrust the agent and may lead to conflict in the divorce. The agent must make a concerted effort to share information equally with both spouses, even though it is natural to communicate more with the spouse who is still living in the home.
2. Diplomacy: Similar to neutrality, the agent should be diplomatic in dealing with you. An agent who has experience with divorcing clients should know how to help both sides agree on important issues regarding the sale. There may be times when your emotions lead to an argument with your spouse about the home. Your agent should know how to help defuse this situation and keep you on track with the sale.
3. Trustworthiness: You always want to trust your real estate agent but may need to rely on that trust more during a divorce. You may not have the time to oversee every step of the sale. You need to trust that your agent can follow your instructions and make decisions that are in your best interest.
4. Strong Negotiator: Your financial plan for your divorce may rely on the money you receive from selling your home. You need an agent who can negotiate a good price on the sale and complete it in a timely fashion so as not to delay your financial plans.

Contact a St. Charles, Illinois, Divorce Attorney

You should be able to learn whether a real estate agent would be a good fit for you by searching for client reviews and interviewing them. How do you find the best candidates among the hundreds of agents? A Kane County divorce lawyer at Goostree Law Group can recommend real estate agents when handling your divorce case. To schedule a free consultation, call 630-584-4800.

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Items that you received as gifts during your marriage are usually considered to be non-marital property. A gift that your spouse gave to you for your birthday or anniversary is non-marital, even though your spouse used marital money to purchase it. However, a divorce court may classify a gift as marital property and subject to division, depending on the intent behind the gift and how you used it. Here are four examples of how a gift can become marital property:

1. Gift for Both: The court will distinguish between gifts that are meant for you only and gifts meant for you and your spouse. Wedding presents are a common example of gifts that are marital property because the giver intended you to use it as a married couple. Your spouse may argue that other gifts were given to you as a couple. You need to explain the reason for the gift and whether your spouse used it.
2. Gift as a Loan: A gift by definition is an asset that someone donates to you with no expectation of compensation. Money that a family member gives you becomes a loan instead of a gift if you agree to pay that money back. Loans that you receive during your marriage are marital debts, which can be divided during a divorce. The best ways to prove that a gift was a loan are showing a promissory note or asking the person who gave the money what his or her intentions were.
3. Gift as a Reward: An asset is not a gift if you received it in exchange for another asset or your services. The circumstances around receiving the asset can determine whether it was a gift or a reward. A court may interpret a monetary gift as compensation if the giver was thanking you for your help or expected you to perform a service soon after.
4. Gift Treated as Marital Property: Even a gift that is meant for you alone can become a marital property depending on what you do with it. For instance, money that you inherit is a non-marital property as long as you keep it separate from your marital money. If you put the money in a shared bank account, it gets mixed in with your marital money and may no longer be an individual asset.

Contact a St. Charles Divorce Attorney

You bear the burden of proof when you claim that an item from your marriage was a gift and is not marital property. A Kane County divorce lawyer at Goostree Law Group can find evidence that the item was intended as a gift to you. To schedule a free consultation, call 630-584-4800.

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If you are thinking about a divorce, you probably realize that you and your spouse will need to figure out a plan for dividing the property that you own as a couple. You may also understand that if you cannot reach an agreement on your own, the court will need to step in and divide your assets and debts for you. Finally, you may even know that the property division laws in Illinois are based on the principals of equitable distribution, which means that, if left to the court, your marital property will be divided in a way that is fair and just, not necessarily evenly.

Many individuals, however, are unsure about what the law considers to be marital property. Countless movies and television shows suggest that just about anything a person has ever owned—both prior to and during the marriage—is fair game in a divorce. Fictional characters are often encouraged to be wary of marriage because if it ends badly, his or her spouse will supposedly get half of everything. Assuming that the marital property was supposed to be split 50/50 in Illinois, a spouse would not be entitled to a share of anything the other party ever owned. Instead, the law provides a definition of what comprises the marital estate which, at times, can be a little complicated.

When the Property Was Acquired

Big changes have come to the Illinois Marriage and Dissolution of Marriage Act, effective January 1, 2016. These changes include new rules regarding child custody, property division, grounds for divorce, and the period of time a couple must be separated from each other before they may file for divorce. 

Property Will be Valued by its Market Value Standard

Under the changes to the law, the court will determine the value of a couple's property by applying the fair market value standard. This means that a couple's property will be appraised according to its worth on the date that the court handles the couple's property division, rather than by considering factors like the property's cost and potential for depreciation. If necessary, the court can bring in an outside financial expert to appraise a couple's property. The divorcing couple may be held responsible for the cost of the professional appraiser.