New Domestic Relations Law and its Effect on Non-Marital Property

When a party files for divorce, one of the biggest issues is the question of what property is marital and what is non-marital.  Usually, any property acquired prior to the marriage is non-marital property.  Per the current Illinois Marriage and Dissolution of Marriage Act as enacted in 1977 and amended in 2006, provided that property purchased prior to the marriage but in contemplation of the marriage, was presumptively marital property unless rebutted otherwise.  In re Marriage of Jacks, 200 Ill. App. 3d 738, 507 N.E.2d 106 (2d Dist. 1990).

The new IMDMA does away with such a distinction; if the property was purchased prior to the marriage by one spouse, that property is that spouse’s sole non-marital property regardless of whether it was purchased in contemplation of marriage or not.  This is a big difference that can significantly affect a party’s interest in property, especially the party with less income.  If the title includes both parties name anyway, the property would be marital whether or not it was purchased prior to the marriage. Any money that has been invested by one party into the other’s non-marital property will be reimbursed from the non-marital estate.  But said investment would not change the categorization of said property as non-marital.

Another change is the classification of pre-marital businesses as marital in certain situations.  Per the current IMDMA and a line of cases, Illinois law was moving towards preserving the non-marital status of businesses, such as distributions and stock options, as non-marital.  The ideal scenario here would be a mom and pop business that has been passed down by generation.  The new IMDMA has moved the law more in the direction of classifying said businesses as marital, especially if the wife is an employee or has put any effort towards increasing the value of the marital business.

There are several other changes to keep track of, but this is one of the many changes that attorneys and litigants need to be aware of.





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