Say you brought assets into your marriage. Maybe you inherited money from a parent, saved for years before the wedding, or owned a home before you got married. Now you are facing divorce and wondering whether those assets are still yours.
The answer depends on how you handled them during the marriage. Illinois law protects certain property as non-marital, but that protection can be lost through commingling. When assets get mixed together, tracing is how you prove what portion was originally yours.
This article explains what commingling is, how tracing works, and what you can do if you are already in this situation.
Key Takeaways
- Illinois presumes property acquired during marriage is marital. You must prove otherwise.
- Commingling happens when non-marital property mixes with marital property and loses its identity.
- Tracing is how you prove that current assets came from a non-marital source.
- You may still protect commingled assets if you can document where the money came from and where it went.
- Reimbursement may recover the value of your contribution even if the asset itself becomes marital.
- The sooner you gather records, the stronger your position.
What Property is Yours and What Gets Divided in Illinois Divorce
Before understanding commingling, you need to understand how Illinois divides property. Under 750 ILCS 5/503, Illinois puts property into two categories: non-marital property and marital property.
Non-marital property includes:
- Property acquired before the marriage
- Property received by gift or inheritance, even during the marriage
- Property excluded by a valid prenuptial or postnuptial agreement
- Property acquired after a legal separation judgment
Marital property includes almost everything else acquired during the marriage, regardless of whose name is on the title.
Illinois presumes that property acquired during marriage is marital. The spouse claiming something is non-marital must prove it. This presumption places the burden on you to show that an asset should remain yours alone. For a broader overview of how Illinois courts divide assets, see our property division page.
Examples of Marital Versus Non-Marital Property
| Non-Marital Property | Marital Property |
| Inheritance kept in a separate account | Inheritance deposited into joint account and used for household expenses |
| Home owned before marriage, kept in one name | Home owned before marriage, spouse added to title |
| Gift from parent deposited into individual account | Gift used as down payment on jointly titled marital home |
| Premarital savings kept separate throughout marriage | Premarital savings transferred to joint account |
What is Commingling and Why Does It Matter?
Commingling happens when non-marital property gets mixed with marital property to the point where it loses its identity as separate.
Under 750 ILCS 5/503(c)(1), when non-marital property is commingled with marital property and can no longer be identified, the contributed property becomes part of the marital estate. In plain terms, your separate property changes into marital property.
Once that happens, the court can divide it. You may lose some or all of what you brought in.
The key phrase is “loses its identity.” If you can still trace the non-marital property and show what it became, it may keep its non-marital character. If you cannot, it becomes marital. This is where tracing comes in.
What is Tracing and How Does It Relate to Commingling?
Tracing is the process of documenting that a current asset came from a non-marital source. Think of it as following a paper trail from the original asset to whatever it has become today.
Commingling is the problem. Tracing is the potential solution. If you can trace your non-marital funds through bank statements, transaction records, and other documents, you may be able to protect what is yours even after mixing has occurred.
Common Situations Where Commingling Happens
Most commingling happens gradually, through everyday financial decisions that seem harmless at the time. Here are the scenarios we see most often.
Depositing an Inheritance Into a Joint Account
You receive $100,000 from a deceased parent. You deposit it into the joint checking account you share with your spouse. Over time, the account pays for mortgage payments, groceries, vacations, and daily expenses.
What happens: The inheritance funds mix with marital income. After months or years of deposits and withdrawals, identifying which dollars came from the inheritance becomes difficult or impossible.
What you can do: If this has already happened, you may still trace the inheritance if you have the original deposit records, account statements, and can show the path of the funds. However, the longer the money sat in the joint account and the more transactions occurred, the harder tracing becomes. For more on keeping inherited assets protected, see our guide on protecting your inheritance in divorce.
Using Premarital Savings for a Down Payment on the Marital Home
You saved $80,000 before marriage. You use that money as a down payment on a home you and your spouse purchase together, titled in both names.
What happens: The home is marital property because you acquired it during the marriage and titled it jointly. Your premarital contribution may qualify for a reimbursement claim under 750 ILCS 5/503(c)(2). However, you must trace the contribution and prove you did not intend it as a gift to the marriage.
What you can do: To support a reimbursement claim, gather documentation showing the premarital account balance, the transfer to the closing, and the closing statement showing your funds were used. A clear paper trail matters. For more on how courts handle the family residence, see our article on dividing the family home in Illinois divorce.
Adding Your Spouse to the Title of a Premarital Asset
You owned a condo before marriage. After the wedding, you add your spouse to the deed, perhaps for estate planning or to refinance.
What happens: Illinois courts often treat retitling as evidence of intent to make the property a gift to the marriage. Once your spouse is on the title, the court presumes the property is marital.
What you can do: To overcome this presumption, you would need to show the retitling served a specific purpose, such as qualifying for a loan, and was not intended as a gift. This is difficult to prove. If you have not yet added your spouse to a premarital asset, think carefully before doing so.
Paying Marital Bills From a Separate Account
You keep an inheritance in a separate account in your name only. Over time, you use it to pay the mortgage, cover household bills, or pay for marital expenses.
What happens: Using non-marital funds for marital purposes can create commingling, even if the account stayed in your name. The marital estate may also have a claim for the benefit it received.
What you can do: If you have used non-marital funds for marital expenses, documentation of each transaction matters. You may still trace what remains and preserve its non-marital character. Alternatively, you may claim reimbursement for contributions that benefited the marital estate.
Want to Learn More About Protecting Assets in Divorce?
If you recognize your situation in any of these scenarios, you are not alone. Read our guide, Messy Issues in High-Asset Divorce, for a deeper look at property division challenges and how to prepare.
Common Mistakes That Weaken Your Claim to Non-Marital Property
These are the errors we see most often in commingling disputes. Each one makes it harder to prove what is yours.
- Depositing an inheritance into a joint account “just temporarily” without keeping records. Even short-term mixing can create tracing problems if you cannot document the deposit and withdrawal.
- Adding a spouse to the title of a premarital home to refinance or simplify estate planning. Courts often treat this as a gift to the marriage, even if that was not your intent.
- Using non-marital funds to pay marital bills without tracking the amounts. Without records, you cannot prove what you contributed.
- Failing to keep original inheritance documentation such as the will or probate records. These documents establish the non-marital source.
- Waiting years to organize financial records and discovering gaps when divorce begins. Banks may not retain statements beyond seven years.
- Assuming that title determines whether property is marital or non-marital. It does not. Courts look at the source of funds and how the property was handled.
- Making verbal agreements about property instead of putting them in writing. Verbal agreements are hard to prove.
- Mixing non-marital and marital funds in a single investment or brokerage account. Multiple deposits and market fluctuations make tracing extremely difficult.
- Refinancing a premarital home and using marital income to pay the new mortgage without documentation. The marital estate may now have a claim.
If you suspect your spouse has incomplete records or may be hiding assets, see our article on finding hidden assets in Illinois divorce.
How Tracing Works in Illinois Divorce Cases
Tracing is how you prove that a current asset came from a non-marital source. The goal is to follow the paper trail from the original non-marital property to whatever it has become today.
What Standard of Proof Applies?
The spouse claiming non-marital property must prove it by “clear and convincing evidence.” This is a higher standard than most civil cases require. In practical terms, it means you need reliable documentation, not just your memory or general statements. You need records that show where the property came from, how it was titled, the transfer history, and any points where funds were mixed.
What Illinois Courts Look For
Courts evaluate tracing claims based on:
- Original documentation of the non-marital asset, such as a will, probate records, premarital account statements, or gift letter
- Records of the specific transaction that moved the funds, such as a deposit slip, wire transfer, or check
- Account statements showing the funds remained identifiable or can be traced through subsequent transactions
- Evidence that you did not intend the property as a gift to the marriage
When Tracing Becomes Difficult
Tracing is straightforward when the path is short and clean. It becomes harder when:
- Many years have passed with multiple transactions
- Funds moved through multiple accounts
- Records are incomplete or missing
- The account balance dropped below the original non-marital contribution at any point
When You May Need a Forensic Accountant
In complex cases involving multiple accounts, business interests, or long transaction histories, a forensic accountant may be needed to trace funds and prepare an analysis the court can rely on. These professionals specialize in following money trails and can uncover evidence that would otherwise be missed. Learn more about the role of a forensic accountant in divorce. Forensic accounting support is common in high-asset divorces where significant non-marital property is at stake.
Where to Obtain Records in Cook, DuPage, Lake, and Will Counties
If you need documentation to support a tracing claim, here is where to find common records in the Chicago area:
Recorded deeds, mortgages, and title transfers: County recorder office for the county where the property is located. These records establish when property changed hands and how it was titled.
Property tax records and PIN lookups: County assessor office or treasurer office. These records can confirm ownership history.
Probate records for inheritances: Circuit clerk office, probate division, in the county where the estate was administered. These records prove the source and amount of an inheritance.
Court filings and orders from prior litigation: Circuit clerk office in the relevant county. Prior court records may document property ownership or prior agreements.
Bank and investment records come from the financial institutions directly. The further back you need to go, the longer it may take to obtain historical statements. Many banks only retain records for seven to ten years, so act quickly.
See How We Have Helped Clients Protect Their Assets
Tracing and property division disputes require experience and attention to detail. See examples of how we have helped clients navigate complex property issues in our case victories.
What to Do If You Are Facing Divorce With Commingled Assets
If you are already in this situation, here is how to move forward.
Step 1: Gather Your Records Now
Start collecting documentation before it becomes harder to find:
- Bank and investment account statements going back as far as possible, ideally before the marriage
- Records of any inheritance, including wills, probate documents, and estate distribution letters
- Gift letters or documentation of gifts from family
- Property deeds, titles, and closing statements
- Tax returns showing non-marital property or income
Step 2: Identify What You Are Trying to Protect
Make a list of assets you believe are non-marital. Note the original source of each one. Then consider whether you have documentation to support each claim. Be honest with yourself about gaps in your records.
Step 3: Understand That Partial Recovery May Be Possible
Even if commingling has occurred, you may have options:
- Tracing may still work if records exist.
- Reimbursement claims may recover the value of contributions even if the asset itself is marital.
- A skilled attorney can evaluate what is realistic given your documentation.
Step 4: Talk to an Attorney Before Making Assumptions
Commingling disputes are fact-intensive. What seems like a lost cause may have options. What seems protected may have vulnerabilities. Get a professional assessment before deciding how to proceed.
Can You Get Your Contribution Back If Assets Are Already Mixed?
Even when non-marital property has been commingled, Illinois law allows for reimbursement in certain circumstances under 750 ILCS 5/503(c)(2).
If you contributed non-marital funds to marital property, you may recover the value of that contribution, as long as:
- You can trace the contribution with documentation.
- The contribution was not intended as a gift.
Example: You used $50,000 of premarital savings as a down payment on a jointly titled home. The home is marital property. However, if you can document the source of the down payment and show it was not a gift, you may receive $50,000 back, or its adjusted value, when the home is divided.
Reimbursement requires proof. Courts will not award reimbursement based on general claims without documentation.
What If Your Spouse Wrongly Claims Assets Are Non-Marital?
Sometimes the issue is not protecting your own non-marital property. Instead, you may suspect your spouse is trying to keep assets that should be divided.
If your spouse claims an asset is non-marital, they must prove it with documentation. You have the right to challenge that claim. Consider asking:
- Where did the funds originally come from? Request documentation of the source.
- Has the property been mixed with marital funds at any point? Request account statements showing the transaction history.
- Was the property retitled or refinanced during the marriage? Request deeds, closing statements, or loan documents.
- Were marital funds used to maintain, improve, or pay down debt on the property? If so, the marital estate may have a reimbursement claim.
Your attorney can use formal discovery, which is the legal process for requesting documents and information, to obtain records your spouse may not voluntarily provide. If records suggest hidden assets or misrepresentation, a forensic accountant can analyze the evidence.
How to Protect Non-Marital Property During Marriage
If you are not yet facing divorce but want to protect assets for the future, consider these steps:
- Keep non-marital property in accounts titled solely in your name.
- Do not deposit inherited or gifted funds into joint accounts.
- Do not add your spouse to the title of premarital property without understanding the consequences.
- Maintain organized records including wills, gift letters, account statements, and deeds.
- Consider a prenuptial agreement or postnuptial agreement to clarify property classification in writing.
For guidance on handling debt during divorce, see our article on dividing debt in an Illinois divorce.
When Commingling Disputes Require Legal Help
Commingling disputes are fact-intensive and require careful analysis. Cases involving significant assets, complex transaction histories, or contested claims often require:
- Detailed document review and organization
- Strategic planning for formal discovery
- Forensic accounting support
- Experienced courtroom presentation
At Anderson Boback and Marshall, we handle complex property division cases in Cook, DuPage, Lake, and Will counties. If you are facing a divorce with commingled assets, or if you need to challenge your spouse’s claims about non-marital property, contact us to discuss your situation.
Common Questions About Commingling in Illinois Divorce
What is commingling in an Illinois divorce?
Commingling is when non-marital property is mixed with marital property such that it becomes hard to distinguish. If non-marital property loses its identity through commingling, a court may treat some or all of it as marital property. Under 750 ILCS 5/503(c)(1), when non-marital property is contributed to marital property and loses its identity, it becomes part of the marital estate. This means assets you brought into the marriage or inherited during the marriage can become divisible if you mix them with marital funds.
Can I still claim my inheritance if I deposited it into a joint account?
Possibly. An inheritance is generally non-marital property under 750 ILCS 5/503(a). However, depositing it into a joint account can create commingling issues. You may still protect all or part of it if you can trace the funds and show the deposit was not intended as a gift to the marriage. You will need deposit records, monthly statements tracking how the money moved, and the original inheritance documentation. The longer the funds sat in the joint account, the harder tracing becomes.
What does “clear and convincing evidence” mean in property disputes?
This is the standard of proof required to establish that property is non-marital. It is higher than the “more likely than not” standard used in most civil cases. In practical terms, you need reliable documentation showing where the asset came from and how it was handled during the marriage. General statements or memory alone are not enough.
Does adding my spouse’s name to a deed or account make it marital property?
It can. Retitling an asset into joint names may be treated as evidence that you intended to share ownership, which courts may view as a gift to the marriage. Whether it changes classification depends on the facts. To overcome the presumption, you would need to show the retitling served another purpose, such as estate planning or loan qualification, and was not intended as a gift.
What is tracing in an Illinois divorce?
Tracing is the process of showing that an asset came from a non-marital source such as premarital funds, an inheritance, or a gift. Tracing relies on a paper trail that tracks the path of the money over time. The goal is to connect current assets back to their original non-marital source. Illinois courts require this tracing to be done by clear and convincing evidence under 750 ILCS 5/503(c)(2).
What happens if marital money paid the mortgage on a premarital home?
This often creates a mixed situation. The home may still be non-marital in part, but marital contributions can lead to reimbursement claims. Under 750 ILCS 5/503(c)(2), when marital funds are used to pay down the mortgage on non-marital property, the marital estate may be entitled to reimbursement. The outcome depends on records showing payment dates and sources of funds.
Can commingling be undone in Illinois?
Sometimes. If you can clearly trace what portion came from a non-marital source, a court may treat that portion differently from the rest. However, if repeated mixing or missing records makes tracing impossible, separating non-marital from marital becomes much harder. Courts will not guess about property classification. Without clear evidence, the presumption that property is marital usually wins.
Is property non-marital just because it is titled in one spouse’s name?
No. In Illinois, title alone does not control whether property is marital or non-marital. Courts look at how and when the property was acquired and how it was treated during the marriage. Under 750 ILCS 5/503(b)(1), the court presumes that all property acquired during the marriage is marital, regardless of which spouse holds title.
What is reimbursement in Illinois property division?
Reimbursement is a remedy under 750 ILCS 5/503(c)(2) that allows a spouse to recover the value of contributions made from one estate to another. For example, if you used premarital savings as a down payment on a jointly titled home, you may be entitled to reimbursement for that contribution. Reimbursement requires proof of the contribution amount, proof it was not a gift, and tracing by clear and convincing evidence.
What documents do I need to prove non-marital property in Illinois?
Key documents include bank and investment account statements from before the marriage, inheritance documentation such as wills and probate records, gift letters, property deeds and closing statements, records of deposits and transfers, and tax returns that may show non-marital income or assets. The more complete your records, the stronger your tracing claim.
Protect What You Brought Into Your Marriage
Commingling disputes can determine whether you keep the assets you worked for, saved, or inherited. The outcome often depends on documentation and how effectively your case is presented.
At Anderson Boback and Marshall, we represent clients facing complex property division issues in Cook, DuPage, Lake, and Will counties. Whether you need to trace non-marital assets, pursue a reimbursement claim, or challenge your spouse’s claims about separate property, we can help you evaluate your options.
Schedule a consultation to review your situation and get a clear picture of where you stand.
