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How much property can you protect in divorce?

Illinois, like a majority of other states, uses the equitable distribution standard for splitting up property in a contested divorce. Simply put, if you and your spouse can’t figure out how to separate your belongings, the judge overseeing your divorce will make a decision based on the circumstances of your marriage and what they perceive as fair.

Everything that is part of your marital state is vulnerable to division in a pending divorce. However, your non-marital assets will remain your separate property that your spouse likely can’t touch during the divorce. What property constitutes non-marital property under Illinois law?

Gifts and inheritances belong to one person

Non-marital property includes gifts and inherited assets. As long as the item was given to one spouse or bequeathed to one person, the other spouse won’t have a claim to that property unless they can demonstrate commingling with marital assets.

Property from before marriage and after separation are separate

Assets that you owned before you got married and the income you earned prior to marriage remain your separate property in most cases. The same is true of anything you earn or acquire after you formally separate from your spouse, even if you have not officially divorced yet.

Retirement accounts may be the one complicating factor here, as some of the account’s balance may be separate and some may be marital. A careful review can help people determine how much of the account falls into each category.

You have the right to keep anything you protected in a marital agreement

If you and your spouse negotiated a prenuptial agreement before your marriage or set terms in a postnuptial agreement later, anything designated as separate property in a valid marital agreement is exempt from division in divorce proceedings.

Beyond these few exceptions, most everything else acquired during your marriage could very well be subject to division. Your attorney can provide more guidance.