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Separate property vs. marital property

Going through the divorce process is often emotional and may seem overwhelming to some. People are forced to negotiate terms of the divorce settlement that may be difficult to handle. One of the most problematic is often the division of property, as it can be hard to separate property and assets that have been accumulated during the course of the marriage. In Illinois, marital property is divided between the couple once the judge presiding over the case has carefully considered several factors surrounding the divorce, and has determined what is fair and equitable. However, not all items are eligible for division.

Separate property may remain with the original owner, and not be divided in a divorce case. According to Illinois statute, these items include the following:

  •          Gifts given to either spouse by a third-party before, during or after the marriage.
  •          Inheritance money.
  •          Property that the spouse acquired prior to the marriage.
  •          Items included in a prenuptial or postnuptial agreement.

Any piece of separate property may unintentionally become marital property. For example, if the inheritance money given to one party is deposited in a joint bank account that is shared with the other spouse, it may be considered marital. Furthermore, if the title of a property is adjusted to include both parties’ names, it can become marital as well.

Marital property involves items and assets that were accrued during the marriage, such as insurance plans, 401k plans, stock options, homes, vehicles, furniture and pets. Other items that people may not regard as marital may include antique collections, travel reward points, lottery winnings, income tax returns and country club memberships. 

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  3. The Essig staff are courteous and helpful, and the attorneys are professional and knowledgeable. They are very efficient, with prompt turn-around times on title orders and real estate closings. I would highly recommend this office to others!

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    -Donna Jones Craig Jim Maloof Realtor

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