Non-Marital Property Under Illinois Law: How It Can Affect Maintenance and Property Division

In a divorce, the Court has the obligation to equitably divide the marital assets and debts, and determine whether maintenance would be appropriate.  While non-marital property is not subject to being divided in a divorce, it may have a profound impact on the appropriate division of the marital assets and debts.  It may also be considered in determining how much maintenance should be paid.


Therefore, the first question is what is “marital property?”


Section 503(a) of the Illinois Marriage and Dissolution of Marriage Act defines marital property as all property acquired by either spouse subsequent to the marriage, except the following, which is known as non-marital property:

  • property acquired by gift or inheritance;
  • property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift or inheritance;
  • property acquired after a judgment of legal separation;
  • property exclude by valid agreement of the parties (e.g., pursuant to a prenuptial agreement);
  • any judgment or property obtained by judgment awarded to a spouse from the other spouse;
  • property acquired before the marriage;
  • the increase in value of property acquired by a method listed in paragraphs (1) through (6), irrespective of whether the increase results from a contribution of marital property, non-marital property, the personal effect of a spouse, or otherwise, subject to the right of reimbursement provided in subsection (c) of this Section; and
  • 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 law is clear: both inheritance and property acquired before marriage are non-marital.  This means that the party who owns the non-marital property will be keep it in the divorce, and the other party will have no claim to it.  In cases where one spouse has a sizeable amount of non-marital property this may seem unfair, particularly in the case of a long-term marriage.  Also, unlike property, a spouse’s non-marital income may be considered when determining the maintenance award to the other spouse.


In the case of the Marriage of Foster, James and Yvonne married in 1975, had no children during their marriage, and divorced in 2012, when they were age 62 and 63, respectively.  James had plenty of non-marital assets, which he inherited.  Specifically, he had land in Lipscomb County, Texas, which, along with three active oil and gas lease interests, was worth $1,030,979; land in Harper County, Oklahoma which was worth $54,000; and a one-third interest in 100 acres of real estate located in Prosser, Washington.  He also had other accounts, over which the parties litigated the question of whether they were marital or non-marital.


James worked as a teacher, earning $58,000 per year, and received quarterly payments from a trust fund.  Yvonne had not worked outside the home in over 20 years.


During the marriage, James and Yvonne acquired marital assets worth about $372,000, and marital debts totaling about $74,000.


At trial, the court awarded Yvonne 65% of the marital assets, and ordered James to pay 100% of the marital debts.  The court also ordered James to pay Yvonne maintenance equal to 30% of his income from all sources, both marital and non-marital.


The Appellate Court noted that the law requires a trial court to distribute marital assets in “just proportions” considering all relevant factors, including a number of statutory factors.  Just proportions means equitable, not equal, division of marital property.  In determining what exactly those just proportions are, “the court must take into consideration all relevant factors, including ‘the value of the property assigned to each spouse’ and the economic circumstances of each spouse upon division of the property.


In the Foster case, Yvonne was awarded a much larger portion of the marital estate precisely because James had such an extensive non-marital estate, which was his to keep.  The court’s decision was based entirely upon the idea of fairness.  James had well over $1,000,000 in non-marital property.  Yvonne had none.  Because his non-marital assets were so much greater, the court awarded James a mere 35% of the marital assets, and all of the marital debts.


Also noteworthy is the fact that when it comes to maintenance, it did not matter whether James received trust fund payments from a non-marital source.  Section 504 of the Illinois Marriage and Dissolution of Marriage Act does not state the maintenance must be paid only from marital income. In fact, it does not differentiate between marital and non-marital income at all.  Rather, it merely states maintenance may be paid from the income or property of the other spouse.  In addition, the statute requires the court to consider as one of the relevant factors the income and property of each party, including marital property apportioned and non-marital property assigned to the party seeking maintenance.


In sum, non-marital wealth can have a very sizeable impact on the distribution of an estate during a divorce proceeding.  For more information, contact us.

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