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What is your separate property in an Illinois divorce?

One of the most confusing things for many people facing divorce is making sense of how the courts in Illinois divide assets between spouses. Illinois uses the equitable division standard for marital assets. The courts will do everything in their power to ensure that the split is fair. The courts will weigh your personal and financial situations and determine the best way to split your marital assets.

However, not everything that you own is a marital asset. Some of it is separate property that you own independent of your spouse. In most cases, separate property is not subject to division in a divorce. Only marital assets, which include almost everything you acquire or earn during marriage, get split up by the court.

The simplest takeaway is that assets you own that are separate property are typically not subject to division in your divorce. However, in order to protect them from claims by your ex, you will need to demonstrate to the court that they are, in fact, separate property.

What are common forms of separate property?

Determining which of your assets are separate and which are marital can be more complex than you might imagine. However, certain assets are uniquely easy to identify as separate property. Items that you received as gift from individuals other than your spouse, even during the course of a marriage, are separate property.

Any inheritance that you received as an individual is also typically separate property. Any assets you specifically protected in a prenuptial agreement may also receive separate property status in your divorce. Finally, assets that you owned outright prior to your marriage typically remain separate property.

However, there are limits to what you can claim as separate property, even if the asset in question meets the standards outlined above. Commingling of assets could result in them becoming marital property. If you deposit a cash gift or inheritance into a joint account, it becomes property of you and your spouse. Additionally, if your spouse contributes to the maintenance of an asset you consider separate property, the courts may view it as marital property.

An attorney can help you protect your assets

Establishing a legal claim that your property is separate and not marital often requires an understanding of Illinois family law. The more valuable the separate property you hope to protect, the more likely it is that your ex will attempt to counter your legal strategy.

Careful planning and attention to detail as you develop a divorce strategy can help shield more of your assets from division. Working with an experienced lawyer can help you protect your assets as you attempt to move on after your marriage.

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