Most of the time, when a spouse brings property into a marriage, it will remain non-marital property, especially if the title is in his or her name only. However, there are occasions when such assets will become marital property—usually because the chain of ownership becomes muddled either accidentally or deliberately. It is always a good idea to be aware of these considerations in divorce law, lest you lose an asset that you wish to retain.

How Is Property Classified?

Dividing property can be very easy, or it can be so complex that expert opinions may be required. If you bring very little property into your marriage, there will be very little individual, or non-marital, property that is exempt from asset division. Conversely, if you have been married previously, or have significant assets otherwise, you may have substantial non-marital assets that you wish to keep separate from the estate of your current marriage.

A common issue in military divorces is determining the non-military spouse's share of any pension benefits. For example, members of the armed services participate in a survivorship benefit plan. Under federal law, former spouses are not entitled to a survivor benefit unless the military spouse makes a voluntary designation of benefits or an Illinois court orders such a designation as part of a divorce decree.

Court Rejects Wife's Appeal Over Husband's Military Benefit

Military survivorship benefits are not divisible. This means that if a court orders a military spouse to name an ex-spouse as beneficiary, he or she cannot split the benefit with any future spouse. Survivorship benefits are therefore an “all-or-nothing proposition,” according to an Illinois appeals court that recently addressed such a case.

Although child custody is often the most contentious issue in an Illinois divorce, in some cases, it is a family business that causes the most headaches. When the divorcing spouses work together in the business, it can be especially difficult to amicably untangle the professional relationship. The spouses may not even be able to agree on fairly basic issues such as how much the business is worth.

Court Rules Husband Entitled to New Hearing on Business Worth

Here is a recent example. A married Illinois couple started a painting business. They incorporated the business with the wife having 51 percent ownership, with the husband controlling the remaining 49 percent. At the time divorce proceedings began, she was the corporation's president, and the husband served as chief financial officer.

Illinois is considered an equitable distribution state when it comes to dividing marital property. This means that the court is most concerned with making sure the division of property between ex-spouses is considered fair and just, not necessarily equal.

While splitting all of the marital property equally—as is done in community property states—may seem to be fair on its face, this method can actually disadvantage one party, depending on the details of the family's particular situation. Rather, the Illinois law requires the court to consider the whole picture when determining what is fair and decide property division on a case-by-case basis.

If you are going through a divorce in Illinois or are considering filing for divorce, it is important that you understand just how marital assets may be allocated. Your experienced DuPage County family law attorney with our firm can take a look at the marital assets and liabilities that you and your spouse maintain and make arguments and recommendations to the court regarding how the relevant factors ought to be interpreted given your specific circumstances.

How property is split in an Illinois divorce case may sound relatively simple initially. Anything that you come into the marriage with and keep separate is non-marital property that you get to keep after a divorce. Anything that is commingled with your spouse or that you and your spouse purchase together is marital property that you will have to negotiate how to split, or follow the decision of the court.

There are, however, always complications to rather simple laws. One of the more confusing areas of Illinois divorce law involves revocable trusts.

What Is a Revocable Trust?