Classifying Marital and Non-Marital Property

September 29th, 2025 by Tiffany Hughes

What is marital property and non-marital property in an Illinois Divorce? Great question. Understanding the distinction between marital property and non-marital property is crucial during the asset division phase of an Illinois divorce. Often one of the most contentious parts of the process, property distribution in Illinois is governed by the Illinois Marriage and Dissolution of Marriage Act (IMDMA). This law defines marital property as any property acquired during the marriage, regardless of whose name is on the title, unless the property was obtained through inheritance or as a gift.

What Happens to Property Owned Before Marriage?

Property owned before the marriage is generally classified as non-marital property in Illinois and is not subject to division during ta divorce. For instance, if one spouse owned a home before the marriage and kept it in their name, that property will usually remain with them after the divorce. However, if marital funds were used to improve or maintain the property, it could complicate the classification. This situation may lead to questions such as, “How does separate property become marital property in Illinois?”

Is Inheritance Considered Marital Property in Illinois?

In most cases, inheritance is considered non-marital property, even if it was acquired during the marriage. For example, if one spouse inherits money or assets from a family member, that inheritance will typically remain separate and not be subject to division in a divorce. However, if the inheritance was commingled with marital funds—such as depositing it into a joint bank account—it may lose its non-marital status.

Marital Property and Asset Division in an Illinois Divorce

Under Illinois law, most property and assets acquired during the marriage are considered marital property and subject to equitable division. This includes:

• Real Estate: If the marital home was purchased during the marriage, it is considered marital property, even if only one spouse’s name is on the deed.
• Vehicles: Cars bought during the marriage are typically classified as marital property, regardless of whose name is on the title.
• Pensions and Retirement Accounts: Contributions to retirement plans made during the marriage are marital property and subject to division.

The division of marital property in Illinois aims to be fair, though not necessarily equal, and takes into account factors such as the length of the marriage, each spouse’s economic circumstances, and whether there was any waste or dissipation of assets during the marriage.

Debt in a Divorce

 Just as marital property is divided, so is marital debt. Debts incurred during the marriage, such as credit card balances, mortgages, and loans, are typically considered the responsibility of both spouses, regardless of whose name is on the account. 

Protecting Non-Marital Property

If you want to ensure certain assets remain non-marital property, Illinois law allows couples to draft agreements to define ownership. These agreements can take the form of premarital (prenuptial) agreements, postnuptial agreements, or agreements during divorce proceedings. These contracts are legally binding under the IMDMA and can help reduce disputes during divorce.

Avoiding Conflict Over Asset Division

Drafting a clear agreement about property ownership can minimize disputes and help clarify questions such as, “What happens to the property I owned before marriage in a divorce?” A well-structured agreement can also address issues like pensions in a divorce, how to handle commingled funds, or disputes over debts incurred during the marriage.

By understanding the distinction between marital property and non-marital property, as well as the rules under the Illinois Marriage and Dissolution of Marriage Act, couples can navigate the complexities of asset division in an Illinois divorce with greater clarity

Need More Information or Representation?

If you are filing for a divorce, give The Law Office of Tiffany M. Hughes, P.C. a call today at 773-893-0228 for a confidential, complimentary 30-minute phone consultation or email Tiffany Hughes directly at Tiffanyhughes@thugheslaw.com. Our entire practice is solely dedicated to the area of family law. We are highly experienced in providing legal representation to anyone who is getting a divorce, who believe their spouse is dissipating marital assets or have increased their spending during a divorce, who wants more information on what may happen to property owned prior to a divorce, who wants to learn about how non-marital and marital property are classified by Illinois divorce courts, who wants to ensure certain assets remain non-marital, who wants guidance on how pensions, real estate, or vehicles are divided in a divorce, who wants assistance with handling commingled assets or funds in their divorce, or who wants help resolving disputes over debts obtained during their marriage or divorce proceedings.

About Tiffany M. Hughes, Divorce Attorney, Principal, Managing Partner, The Law Office of Tiffany M. Hughes, P.C.:

Tiffany M. Hughes is a divorce attorney and Managing Partner of The Law office of Tiffany M. Hughes. Recognized as a Top 100 Lawyer in Lawyers Magazine in 2018 and 2019, Super Lawyer from 2016 to date, and in addition to numerous other accolades, Ms. Hughes represents individuals in all aspects of family and matrimonial law proceedings, including litigation, mediation, allocation of parental responsibility (formerly known as custody), parentage, divorce and other child-related matters.

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This blog is made available by The Law Office of Tiffany M. Hughes, P.C. for educational purposes only as well as to give you general information and a general understanding of Illinois law, not to provide specific legal advice. By using this website you understand that there is no attorney client relationship between you and The Law Office of Tiffany M. Hughes, P.C. The website should not be used as a substitute for competent legal advice from a licensed professional attorney in Illinois.  The law changes constantly and we do not go back in time to edit old posts that may be affected by these changes.  If you have any questions about Illinois law, which is the only State this blog and website discusses, please call The Law Office of Tiffany M. Hughes, P.C. for a complimentary phone consultation and do not draw any legal conclusions without speaking to a competent attorney in Illinois first.