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DuPage County property division attorney, Illinois divorce law, gifts to spousesChances are you and your spouse engaged in the tradition of gift giving between yourselves and with other members of the family. Whether for birthdays, holidays, anniversaries, or other special occasions, presents are a way of showing love, appreciation, and gratitude. Now that you are considering divorce, what happens to these mementos that—in some cases—might be worth a lot of money?

You might already be aware of how Illinois divorce law treats marital and non-marital assets for purposes of property distribution. However, the treatment of gifts is not so clear-cut. An attorney with experience in property division matters can tell you more about specific items, but here are some general rules on how the law applies.

Legal Presumption as Non-Marital Property


DuPage County divorce lawyer, purchase in anticipation of marriageIt is common for engaged couples to make purchases before their wedding day, with the intent that the two will use these items when they are united in marriage. Often, soon-to-be spouses will invest in real estate or other high-ticket items. However, when the unfortunate happens and the once-happy couple decides to divorce, there are often questions regarding this property and how it will be equitably divided during the divorce process. The Illinois divorce statute speaks to exactly this situation, defining these items as purchases “in anticipation of marriage.” You should discuss the specifics of any items you bought as a couple before your wedding day, especially since there have been recent changes to Illinois divorce law that became effective in 2016.

Marital Versus Non-Marital Property

Purchases made in anticipation of marriage come into play in the context of marital and non-marital property. Before a court will make an equitable distribution of property to spouses, it is first necessary to establish the classification of all assets. Then, a judge can divide marital assets and make a ruling that respective spouses can keep non-marital property. Under Illinois law, the spouses may also agree on the classification of marital versus non-marital property.


DuPage County divorce attorneys, non-marital property, marital homeAbsent an agreement of divorcing parties regarding their assets, a court will make an equitable distribution of property to each spouse as part of the dissolution of marriage process in Illinois. However, before dividing up the items, it is necessary to establish which assets are considered “marital” and “non-martial” under state law. While the distinction may be clear-cut for certain assets, the line between the two types of property may not be as obvious for others. There are rules that establish the difference between marital and non-marital property in Illinois, so discuss your specific circumstances with an attorney that has experience in property divisions in Illinois divorces.

Assets Included in Marital Property

The general rule is that all property acquired by spouses during their marriage is considered marital property. Hence, the property will be equitably divided throughout the divorce process. A court does not look to actual title and name associated with an asset in determining whether it qualifies as marital property. Typically, any item you come by during marriage will be included in marital property, including:


Posted on in Property Division

DuPage County divorce attorney, high asset divorcesDivorce is a complex emotional and financial event. This is true for couples regardless of their financial status. Wealthy couples with high assets will face a unique set of challenges and stress during their divorce. You and your spouse will need to work through the emotions of a divorce and defend the financial assets you have built. You will also have the difficult task of sorting through your stocks, property, IRAs and 401k accounts. Additionally, in many cases, you will need to investigate your spouse's finances to ensure that you have identified all available assets to divide in the divorce. In many high asset divorces, property division can become the central issue.

Protect Assets with a Prenuptial Agreement

While prenuptial agreements are not just for the wealthy, it is probably a good idea for wealthy couples to consider drafting such a contract. Under Illinois law, couples can use a prenuptial agreement to make decisions about their assets and other issues that may arise in a divorce. Issues that you can incorporate in your prenuptial include:


Posted on in Family Law

DuPage county divorce attorneys, Illinois family law changesThis fall, important aspects of Illinois family law will change. SB57 is Illinois' effort to change the way family law is practiced in Illinois.

Illinois law now rejects determinations of fault in divorce and seeks to remove the stigma of being a non-custodial parent. The new provisions accept the fact that marriages do not always work out and seeks to ensure that a child's needs are met.

Understanding these these changes will be critical for couples seeking divorce and creating custody agreements in the near future. It is important to consider these changes to Illinois family law that may affect you in the future:

How Will Gifts be Treated during a Divorce?

During a dissolution of marriage in Illinois, a court will approve a settlement agreement that provides for an equitable distribution of assets. Usually, this means that any marital assets or property owned jointly by the spouses must be divided equally. Non-marital assets, or property that belongs solely to one spouse, will remain the property of that spouse and generally will not affect the way the marital property is divided. Exceptions can be made when an equal division of marital assets would be extremely unfair to one spouse, for example, when the other spouse has a disproportionately larger amount of assets.

Marital vs. Non-Marital

When classifying assets as either marital or non-marital, one of the clearer rules under Illinois law is that gifts to one spouse are presumed to be non-marital property. This presumption provides only a default starting position, however. It can be rebutted or shown to be otherwise with evidence and testimony in court.

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