Marital Property

Issues regarding marital property typically come into play when a couple makes the decision to end their marriage. State laws, including those in Illinois, laws generally define marital property as any property acquired by either party during the course of the marriage. This includes mutual gifts, joint checking and savings accounts, homes and other real estate holdings, mutual investments, stocks and bonds, and other joint assets acquired during the marriage. Many spouses need help from attorneys or must participate in court proceedings before deciding how to split their property.


Joint accounts are usually automatically considered joint property. If either spouse has a separate savings account, any interest accumulated following marriage may also qualify as community property. Separating bank accounts can become complicated since the spouses or the court may need to determine factors such as interest acquired and each individual’s contributions to each account.

Any items purchased with inheritance money belonging to one spouse are generally considered non-marital property as long as there were no joint financial contributions. Stocks and bonds are sometimes especially tricky, since ownership may depend on ownership of the stocks and bonds and the date when they were purchased.


In general, property acquired after the couple married is automatically divided between each party if there was no preexisting agreement. The marital home often especially leads to disputes or legal issues. For example, if the wife owned the marital home prior to marriage, any value added to the home since the marriage might be considered joint property. A refinanced home may have become joint property if both parties signed off on the refinancing option. If the couple made improvements on a home during the marriage, the increased value of the property is often considered joint property. However, property owned prior to marriage is usually considered non-marital property. This may include vacation homes or cabins not used during the marriage.


Gifts given to the couple as a whole are generally considered joint property. If one spouse receives a gift from the other, this may be considered joint property or separate property. If, however, a friend or relative gives a gift to only one spouse, this is likely separate non-marital property. Indeed, it can be difficult to sort out what was given as a mutual gift and what was meant as a gift to just one spouse. If a couple has been married for a long time, it could be near-impossible to determine the intended recipient of every gift gained during the marriage. Money received through an inheritance is also considered a gift, but the intended party is usually listed on related documents.

Parties can sometimes avoid disagreements over marital property if they work together to fashion a prenuptial agreement before a marriage takes place. A valid prenuptial agreement will generally take precedence over default laws regarding the division of marital assets. When spouses lack such an agreement, they may leave the issue of property division up to the courts. If spouses can’t reach an agreement on physical property in dispute, they may need to sell the items and split the proceeds.