Commingled Property and Protecting Your Assets
Many couples, if not most, decide to combine their finances after they get married, effectively sharing their property and income. There may be situations, however, in which a spouse wishes to keep some of his or property separate even after he or she gets married.
Illinois Law on Marital Property
Illinois takes a very broad view of marital property. With a few exceptions, any asset or debt that is acquired by either spouse after the marriage becomes marital property. Assets or debts acquired before the marriage or that qualify as the mentioned exceptions are considered non-marital property. Non-marital property is not subject to division during a divorce, but assets that began as non-marital can become marital property if they are commingled.
How Commingling Happens
Commingled property means that one spouse’s separate property is mixed with the marital property. When this happens, the separate property becomes part of the marital estate. For example, if one spouse had an inheritance that they received after the marriage, that inheritance would not be marital property; inheritances are one of the exceptions included in the law. But, if that inheritance was deposited into a joint checking account and used for everyday household expenses, it may be considered commingled and may become marital property.
Another common example is a business owned by one of the spouses before the marriage that both spouses work in after the marriage. If not properly protected, part of the business may become marital property.
Why It Matters
A judge in a divorce case must divide marital property equitably. This does not mean it is split equally. Instead, the judge is required to review a variety of different factors and then divide the property fairly according to those factors. If you have commingled your property, you may end up losing it—or at least a portion of it—in the divorce as part of the property division process.
Tools for Keeping Property Separate
One of the best tools for preventing some property from becoming marital property is a prenuptial agreement. A postnuptial agreement signed after a marriage can also have the same result. As long as the prenuptial agreement or postnuptial agreements are properly drafted, reasonable, and are not coercive or otherwise illegal, a judge in a divorce case will respect such agreements.
Another option is to keep the property physically separate. In the case of an inheritance, the funds could be deposited into an individual account and held separately from “family” money. Real estate could be held in the name of one spouse only, with payments made using only non-marital funds.
Seek Legal Guidance
If you own significant assets or business interests or are expecting an inheritance during your marriage, contact an experienced Geneva family law attorney for assistance. The professionals at The Law Offices of Douglas B. Warlick & Associates can help you make arrangements for protecting your assets both now and in the future. Call 630-232-9700 today.