Which Accounts Are Considered Marital Property?

 Posted on October 10, 2023 in Divorce

All marital property must be divided equitably in the state of Illinois. The court will try to divide marital assets so that both spouses are given a fair and equitable share. Regardless of whose name is on the account, unless there is a premarital agreement stipulation in place, it will be considered marital property.

The following accounts are all considered marital property in Illinois if created after the marriage began:

• Checking, savings, and credit card, accounts

• All joint accounts

• Investment accounts

• Business accounts

• Retirement accounts, such as 401(k)s and IRAs

When uncertain of which accounts are considered marital property, a good divorce lawyer can help you understand the finer points of Illinois law. Contact an attorney to go over any accounts you may have and what you can do to safeguard them from division with your soon-to-be ex-spouse.

What Are the Marital Property Laws in Illinois?

For the duration of your marriage, all property assumed is considered marital property. So anything you have accumulated over time can now be subject to division upon divorce in Illinois. Property that was yours before the marriage took place is considered non-marital property. Yet, if you allowed your property to be co-mingled with your spouse’s property, which includes accounts, then that property is now considered marital property.

A premarital or post-marital agreement can serve to secure some assets as long as the agreement is considered enforceable by the court and not unconscionable. 

How Does a Court Determine Equitability?

The Illinois court uses a few different factors in determining the division of marital assets:

• Marriage length

• Value of the accounts (property)

• What each spouse needs

• What your children, if you have any, will need

• Contributions each spouse made to the accounts

• Prior marriage obligations

• The current financial situation of both spouses

What About Separate Accounts Before Marriage?

Accounts made before marriage are considered non-marital property. However, any contributions made to those accounts by the other spouse while married can be seen as marital funds. These funds are then subject to the same division as any other marital property.

How Can I Protect My Accounts from Becoming Marital Property?

The most obvious course of action is to keep your accounts separate from any marital co-mingling. Access to your accounts should be yours alone. Allowing your spouse to contribute funds to your account opens it up to marital property division. It is also a good idea to keep track of deposits and withdrawals made to these accounts.

Another wise decision is a premarital agreement. However, in the likelihood that you are already married, then a post-marital agreement can work for all current non-marital funds and accounts. Just ensure that your post-marital agreement is enforceable and will not be considered unconscionable in a court of law.

Contact a Kane County, IL Divorce Attorney

Understanding which accounts are considered marital and non-marital property is important in a divorce. A skilled Geneva, IL divorce attorney can help in this regard. The law office of Serrano Hanson will be your advocate, working with you every step of the way. Contact the firm at 630-844-8781 for assistance in handling your legal property division case.