Effect of Nonmarital Property on the Division of Marital Assets

When deciding to get divorced, a common concern is finances and how they will be divided between spouses. Illinois is an equitable division state, meaning that marital assets will be split equitably, which does not necessarily mean equally. 750 ICLS 5/503(b-5)(1). Therefore, if one spouse has significantly more nonmarital wealth than another, that would impact how courts determine what an equitable split of marital property looks like. 750 ILCS 5/503(d)(1). Illinois law defines nonmarital property as:

1) property acquired by gift, legacy or descent or property acquired in exchange for such property;

2) property acquired in exchange for property acquired before the marriage;

3) property acquired by a spouse after a judgment of legal separation;

4) property excluded by a valid agreement of the parties, including a premarital agreement or a postnuptial agreement;

5) any judgment or property obtained by judgment awarded to a spouse from the other spouse;

6) property acquired before the marriage, except as it relates to retirement plans that may have both marital and nonmarital characteristics;

7) all property acquired by a spouse by the sole use of nonmarital property as collateral for a loan that is then used to acquire property during the marriage ;

8) the increase in value of nonmarital property and;

9) income from property acquired by a method already listed if the income is not attributable to the personal effort of a spouse.

750 ILCS 5/503(a). However, courts have been split on how much weight it carries. In In re the Marriage of Stephenson, 460 N.E.2d 1 (5th Cir. 1983), the Fifth District upheld a trial court decision that awarded a spouse seventy-five (75%) percent of the marital estate due to her husband’s “substantial” nonmarital estate and higher future earning capacity. Id. at 2.

On the other hand, in In re the Marriage of Miller, 595 N.E.2d 1349 (3d Dist. 1992), the Third District upheld a trial court decision that divided the marital estate in half regardless of the husband’s “substantial” nonmarital estate. Id. at 1356. However, the husband was ordered to contribute to the wife’s attorney’s fees and credit card debt. Id. at 1355.

In conclusion, there is no hardline rule governing how much consideration courts must give to the existence of nonmarital assets when dividing up the marital estate, although it may be used to determine issues relating to maintenance (formerly known as alimony) and contribution to attorneys' fees.