Lawyers Discuss Gifts and Inheritance in an Illinois Divorce
Chicago Divorce Attorneys Provide Legal Guidance on Asset Division
If you are currently entering into a divorce or have plans to file for divorce soon, you undoubtedly have several concerns on your mind. Some of the more common questions that arise involve the division of assets — specifically, gifts and inheritances.
After all, if you were gifted a family heirloom or bequeathed a significant sum of money from your family's estate, you want to maintain control of said item. Therefore, it is imperative that you speak with a Chicago family law lawyer with a strong track record of helping individuals keep what is rightfully theirs. At Nottage and Ward, LLP, we have represented people like you since 1988 and are prepared to use all available resources to help you achieve your separation goals.
Our firm is listed by Martindale-Hubbell in its Bar Register of Pre-eminent Lawyers.
Call (312) 332-2915 or submit your information online, and a representative will contact you shortly to set up a meeting with an attorney at Nottage and Ward, LLP.
Difference Between Non-Marital and Marital Property
When it comes to questions over inheritance and gifts in a divorce, two key terms that you will become acquainted with are non-marital and marital property. Both terms speak to the same issue and can tremendously impact how an asset will be divided. The primary distinction between marital and non-marital property lies in the timing and manner of acquisition.
Marital property in Illinois encompasses assets and debts acquired by either spouse during the marriage. This includes income, real estate, investments, and personal property obtained from the date of marriage until the date of separation. Unlike non-marital property, which remains with the original owner, marital property is subject to division.
Non-marital property in Illinois refers to assets and debts owned by one spouse prior to the marriage or acquired individually through inheritance, gifts, or personal injury settlements. These assets remain the separate property of the original owner and are not subject to division during a divorce. Non-marital property is distinctly yours and is determined by one or more of the following factors:
- You owned the property before finalizing either your current marriage or your upcoming divorce.
- You inherited or were gifted the property.
- The property in question was designated as separate through a prenuptial or postnuptial agreement.
Keep in mind, in the state of Illinois, equitable division does not necessarily mean a 50/50 split. Under the equitable distribution model, property is divided fairly but not necessarily equally. Family courts will determine a "fair" division via a number of different factors, such as the length of the marriage, each spouse's financial situation, and contributions to marital assets.
Exceptions to Non-Marital Property Classification
Certain legal exceptions can influence the classification of assets as marital or non-marital property. Even if an asset is acquired during the marriage, it might still be considered non-marital if it was obtained through inheritance or as a gift specifically intended for one spouse. For example, personal injury settlements awarded to one spouse for pain and suffering or disability are typically classified as non-marital property, but portions of settlements covering lost wages or medical expenses incurred during the marriage may be considered marital. Another key exception involves prenuptial and postnuptial agreements, which can stipulate the classification of specific assets, overriding standard definitions.
Proving Non-Marital Character of Assets in an Illinois Divorce
Proving the non-marital status of assets during a Chicago divorce requires thorough and precise documentation. Essential records include bank statements, deeds, and financial account statements that clearly indicate the source of the asset as non-marital. For example, if a person inherits money, they should keep records of the inheritance, such as a copy of the will or trust document and any correspondence related to the disbursement.
Maintaining separate accounts for non-marital assets and avoiding commingling with marital funds can help preserve their classification. Documentation should include records of any transactions or expenditures related to the non-marital asset, demonstrating that it has not been used for marital purposes.
Bank records, investment account statements, and property deeds that bear only the name of the owning spouse can be critical. Legal documents such as wills or trust documents that bequeath assets specifically to one spouse serve as concrete proof. Transaction histories showing the asset's isolation from marital funds further strengthen the claim. Witness testimonies or affidavits from individuals who can attest to the origin and intended ownership of the asset can also be valuable.
Prenuptial agreements are powerful tools for protecting assets in the event of a divorce. These legally binding contracts, created before marriage, specify how assets will be classified and divided if the marriage ends. A well-drafted prenuptial agreement can clearly distinguish between marital and non-marital property, safeguarding personal assets acquired before the marriage and future inheritances or gifts. By outlining each party's financial rights and responsibilities, a prenuptial agreement minimizes the risk of disputes and ensures a fair division of assets. It is crucial to have these agreements drafted by a qualified attorney to ensure they comply with Illinois law and are enforceable. Both parties should fully disclose their assets and liabilities, and the agreement should be entered into voluntarily.
Estate planning is a critical aspect of protecting non-marital assets, particularly in the context of divorce. By creating clear and legally binding estate plans, individuals can ensure their assets are distributed according to their wishes rather than being subject to equitable distribution rules. Key estate planning tools include wills, trusts, and beneficiary designations, which can specify how assets should be handled. For example, placing non-marital assets in a trust can protect them from being classified as marital property.
Regularly updating estate plans to reflect life changes, such as marriage, divorce, or the birth of children, is essential for maintaining their effectiveness. Clearly communicating the intent behind estate planning decisions can prevent misunderstandings and disputes among heirs.
How Does Asset Division Affect My Gifts/Inheritance?
If your gift or inheritance is understood to be non-marital property and clearly documented to indicate this fact, there should be no question about who owns what. However, if at any point the gift or inheritance in question became "co-mingled" with your marital property, your spouse could call the ownership into question. This most often happens when a financial award or inheritance was deposited into a joint account or when a family home that was either a gift or part of an inheritance became the home in which you and your spouse resided. In either situation, your spouse could contend that the item(s) in question became marital property the moment they were used for the good of both parties and your children.
Speak with One of Our Asset Division Lawyers in Chicago Today
We recommend contacting a law firm as soon as possible. With over 30 years of experience, Nottage and Ward, LLP, can help. We understand your goals and can thoroughly investigate your claim, which will make all the difference when it comes to helping you secure what is rightfully yours.
Contact one of our Chicago asset division attorneys today. Call (312) 332-2915 to schedule an appointment at our Chicago office.
Additional Information
We are proud sponsors of Little Black Pearl Art and Design Center.
To learn more, click here.
Proud Member of Friends of the Chicago River.
To learn more, click here.
Client Reviews
5 Leslie has been the strongest representation I could ask for
Leslie has been the strongest representation I could ask for in a very complicated, emotional matter. She has continuously looked out for my best interest and the best interest of my son. She is always prompt in getting back to me and in keeping me well informed about my case.
Read More Client Reviews
