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When a couple decides to pursue a divorce, they must, at some point, determine how to divide the marital estate between them. If they are not able to reach an agreement regarding the identification and allocation of marital property, the court will be required to do so in accordance with Illinois law. The first step in the process is determining which assets and debts are included in the marital estate. For the most part, this step is fairly straightforward, as most of the property acquired by either spouse during the marriage is marital property. Inherited property, however, generally represents a significant exception, depending upon how it was held and handled throughout the marriage.
Your Inheritance Under Law
The Illinois Marriage and Dissolution of Marriage Act provides that property received through “gift, legacy, or descent”—in other words, your inheritance—is not considered to be marital property. Therefore, inherited assets are not usually subject to division during a divorce. There are a few significant exceptions, though, and it is important to understand how the applicable law works.
In any proceeding for divorce, the spouses must reach an agreement regarding the division of their marital property. If they cannot, the court will equitably allocate the marital estate between the spouses, taking a number of statutory factors into account. During the process, either spouse may file a claim of dissipation, alleging that the other party has spent or “dissipated” marital assets inappropriately, and that the dissipated money should be repaid to the marital estate before proper allocation can be completed. When the spending occurred, however, is an important consideration, and one that may impact the court’s ultimate decision regarding the claim.
What Is Dissipation?
Under Illinois law, dissipation is a spouse’s use of marital assets for his or her own personal benefit and not to the benefit of the marital estate. Dissipation is often alleged in cases where one party has spent a great deal of money on drugs, alcohol, gambling, or extramarital affairs. In some cases, dissipation can also include the destruction of or failure to maintain an asset. Such actions are problematic because inappropriate spending or destruction can significantly reduce the value of the marital estate.
Apart from matters involving the care and upbringing of a couple’s children, property division is often one of the most contentious considerations in a divorce. When two people have spent a significant number of years together, building a life, accumulating assets and wealth, and preparing for a long-term future, it can be incredibly difficult to determine which property should be allocated to which spouse following the dissolution of their marriage.
Marital vs Non-Marital Property
In a divorce situation, only property that is determined to be part of the marital estate is subject to division. Put simply, marital property is any property, asset, or debt acquired by either spouse during the marriage with certain exceptions, including: