Among the most important steps in every divorce is the determination of the property that the court can divide. Marital property is divided between spouses, while non-marital property is awarded to the spouse to whom it belongs. In some cases, whether the court classifies assets as marital or non-marital can mean a multi-million-dollar swing in what each spouse receives in the divorce.

The Illinois Marriage and Dissolution of Marriage Act presumes that any asset acquired by either spouse during the marriage is marital property and, in most instances, requires him or her to prove by a heightened standard of proof that they received the asset in a way that would require the asset be classified as non-marital property. The most common examples of non-marital property are assets owned by the spouse before the marriage and gifts or inheritances received by the spouse during the marriage (including gifts from the other spouse).

Many spouses enter a divorce assuming that they have non-marital property because they came into the marriage with assets or received gifts or inheritance. For example, if Jane Doe had $100,000 in a savings account when she married John Doe, she may assume that she is entitled to $100,000 of her and John’s estate as her non-marital property. That assumption is not necessarily accurate since Jane would have the burden to show with documents not simply that she came into the marriage with $100,000 (which is often a difficult task 15 or 20 years later), but also to “trace” that $100,000 from the date of marriage through the divorce. Given how often people now change financial institutions with which they bank and the reality that people rarely keep cash accounts segregated from their marital earnings during the marriage, the tracing is an onerous and, often, costly task, if it can be accomplished at all.

It is important that spouses who believe that some of their assets are non-marital property begin that tracing at the outset of the divorce. Many going through the shock and emotional turbulence of a divorce do not want to undertake such tasks and wait until it is too late to do the proper tracing of their assets. That delay is a costly mistake and something that the asset-owning spouse should discuss with their attorney at the outset of the divorce so the proper resources can be dedicated to the task.

Benton H. Page, Partner
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