What is Marital Property?

The easy answer to this question is everything is marital unless it is not.  Many people think that by keeping their finances or property separate during the marriage, that it is not marital property but that is not the case. Many people are also unaware that marital property includes debts that either party accumulates during the marriage, even if it is student loan debt, debt on an individual credit card, or a loan for a car that only one party drives, all of this is still marital debt.


750 ILCS 5/503 states that marital property means all property, including debts and other obligations, acquired by either spouse subsequent to the marriage, except the following which is known as “non-marital property:”


(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 marriage;

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

(4)    Property excluded by 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 except, however, when a spouse is required to sue the other spouse in order to obtain insurance coverage or otherwise recover from a third party and the recovery is directly related to amounts advanced by the marital estate, the judgement shall be considered marital property;

(6)    Property acquired before the marriage, except as it relates to retirement plans that may have both marital and non-marital characteristics;

*all property acquired by a spouse by the sole use of non-marital property as collateral for a loan that then is used to acquire property during the marriage; to the extent that the marital estate repays any portion of the loan, it shall be considered a contribution from the marital estate to the non-marital estate subject to reimbursement;

(7)  The increase in value of non-marital property, irrespective of whether the increase results from a contribution of marital property, non-marital property, the personal effort of a spouse, or otherwise, subject to the right of reimbursement;

(8) Income from property acquired by a method listed in paragraphs (1) through (7) of this subsection if the income is not attributable to the personal effort of a spouse.


The caveat with all non-marital property though, is that if it is commingled with marital property, then there is a high possibility that it may turn into marital property.  So if one, desires to keep this property separate, then they should make a conscience effort to do so.


Property acquired prior to a marriage that would otherwise by non-marital property shall not be deemed to be marital property solely because the property was acquired in contemplation of marriage.  The party whom acquired the property, should make a conscience effort to make it marital, if that is their intention.


The Court shall make specific factual findings as to its classification of assets as marital or non-marital property, values, and other factual findings supporting its property award.



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