Retaining Your Non Marital Property After Divorce

For example, establishing the non marital character of an inheritance requires obtaining estate planning documents, such as wills, trusts, gift tax returns and other documents typically admitted in probate proceeding that establish an inventory and value for a decedent’s estate.  Once these records establish and demonstrate the original point in time when the inheritance was received, it is then necessary through tracing, to follow the money or asset to its current form to prove it has not been commingled with marital money.  If the commingling is significant, then the non-marital asset can become transmuted into marital property, in which both spouses share.  Typically, a party’s uncorroborated testimony without some supporting documentation is insufficient to prove funds are non-marital.

Often, it is necessary to enlist the help of an expert witness such as an accountant or other financial planner to trace non marital money.  Illinois cases focus on maintaining a level of separation between the non marital and marital property to preserve are asset’s non marital status.  Disputes frequently arise as to whether the use of certain non marital money has changed the character of the asset to marital property.  Generally, the use of non marital money, even if for a marital purpose, such as payment of joint income taxes, will not alter the character of the asset.  Only in instances where there is a commingling of the non marital money with marital money will the asset typically lose its identity; and should that occur, the property will be classified as marital.

There are steps, however, one can take, even if a commingling has occurred, to try to preserve and protect what is one’s rightful non marital property.  If there are adequate reasons for the commingling, such as estate planning or mere convenience,  the funds may retain their original identify.  Further, if non marital funds only traveled through marital accounts briefly, then the money may retain its character as non marital.  Proper and detailed record keeping, the procurement of necessary written documentation, and in some instances, the assistance of financial experts, will give a much better chance to keep what is rightfully yours when a spouse challenges your non marital property claim.  Your claims in this regard can be strengthened through sound legal advice and competent representation from a family law practitioner who can safeguard what was intended to be yours and not your spouse’s.