When divorcing couples sit down to negotiate matters like property division, the discussions often become contentious. The equitable distribution rules in Illinois require marital property to be divided fairly rather than equally in a divorce, but determining which assets should be included in the marital estate is not always easy. Before negotiations can begin, a divorcing couple must decide which assets are marital property and which assets are not.
Separate property and inheritances
Assets that either spouse owned before they waked down the aisle are usually considered separate property in an Illinois divorce. Any gifts or inheritances they received during the marriage will also be considered separate assets. Separate assets are not divided in a divorce, so any inheritance you receive while you are married should be yours to keep if you divorce. Prenuptial agreements usually list separate assets, and they can be useful documents to have if you are interested in protecting your assets before a divorce.
Commingling
Assets you owned before you got married and inheritances and gifts you receive while you are married can become marital rather than separate assets if they become commingled. Commingling occurs when separate assets become mixed up with marital assets. If you place an inheritance that you receive while you are married into a joint bank account, the court may determine that it is subject to division because it became commingled and is no longer a separate asset.
Property division negotiations
The goal of property division negotiations in a divorce should be reaching an agreement that both spouses can live with, but conflicts over marital and separate assets can derail the discussions. If you want to avoid these problems, you should make sure that any financial gifts and inheritances that you receive while you are married are placed in a separate bank account.
