Wheaton Divorce Attorney for Marital and Non-Marital Assets

Warrenville asset division lawyer for marital and non-marital property

Lawyers Assisting With Division of Property and Debts in DuPage, Cook, Kane, and Will Counties

During a divorce, the division of assets and debts can often be one of the most contentious areas of disagreement between spouses, especially in cases involving complex assets or high wage earners with unique compensation structures. In many cases, disputes will arise over whether certain assets are considered marital property that is subject to division during divorce or non-marital property that will be allocated to one spouse. To ensure that these matters are handled properly, it is important to work with a divorce attorney who is experienced in addressing and resolving financial disputes and the financial uncertainty that often accompanies parties in divorce.

At McSwain Nagle & Giese, P.C., we have a combined total of over 65 years of legal experience, and we have helped our clients address a wide variety of complex financial concerns. We will make sure you understand your rights regarding your marital property, and we will work with you to negotiate a divorce settlement that will protect your financial interests. We can help you use mediation or collaborative law when possible, and we are also prepared to advocate on your behalf during divorce litigation to help you achieve a positive outcome to your case.

Marital Vs. Non-Marital Property

The Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/503) defines marital property as "all property, including debts and other obligations, acquired by either spouse subsequent to the marriage." That is, any assets or debts that spouses acquired during their marriage are presumed to be marital assets, and this property should be divided between the spouses in "just proportions," without considering marital misconduct such as cheating or infidelity.

Assets or debts that are not considered marital property will not be subject to division between spouses, although they can impact the division of the marital property. The IMDMA identifies the following types of non-marital property:

  • Property acquired by either spouse before getting married, as well as any property acquired in exchange for this property.
  • Property acquired by either spouse after a legal separation.
  • Property acquired by "gift, legacy, or descent," including inheritances left to one spouse, as well as property acquired in exchange for these assets.
  • Property that is excluded from the marital estate by a prenuptial or postnuptial agreement.
  • An increase in value of non-marital property that occurred during a marriage. However, if a spouse contributed to the increase in value of the other spouse's non-marital assets, they have the right to be reimbursed for these contributions.
  • A judgment of money or property awarded to one spouse from the other spouse.
  • Income earned from non-marital property that is not based on the personal efforts of either spouse.

Commingled Assets

In some cases, the lines between marital and non-marital property can become blurred. This is known as "commingling" of property. According to the IMDMA, if non-marital property is contributed toward marital property such that it loses its identity, it will be "transmuted" into marital property. For example, if a spouse used funds from a personal bank account that existed before getting married to pay for repairs on a home co-owned by the spouses, the amount of this contribution will likely be converted from non-marital to marital property.

The IMDMA also states that contributions made from the marital estate toward one spouse's non-marital property can be subject to reimbursement. This includes the personal effort by one spouse that resulted in a substantial increase in the value of non-marital property. For instance, if one spouse owns a business that is considered a non-marital asset, and the other spouse performed work to help the business expand operations and increase in value during the marriage, the spouse who owns the business may be required to reimburse the marital estate for the other spouse's contributions. Another example is when a spouse owned a home before the marriage, but the parties paid the mortgage and household expenses with marital funds.

Contact Our Naperville Property Division Attorney

If you need to determine how to fairly and equitably divide your marital assets, McSwain Nagle & Giese, P.C. can provide the legal help you need. We will help you understand whether assets are considered marital or non-marital property, and we will work to ensure that you receive your fair share of the property you and your spouse own together. Contact our office at 630-407-1200 to schedule a complimentary consultation. We assets with complex divorce cases in Warrenville, Wheaton, Glendale Heights, Naperville, Glen Ellyn, Winfield, Carol Stream, and throughout DuPage, Kane, Kendall, Cook, and Will Counties.

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