New Law Changes Status of Some Marital Residences in Illinois

On countless occasions I have explained the difference between marital and non-marital property to clients. Under the law prior to January 1, 2017, “marital property” was anything obtained during the marriage with the exception of (which is non-marital property):

  1. property acquired by gift or inheritance,
  2. property acquired in exchange for property you had before the marriage,
  3. property acquired after a judgment of legal separation, 4)
  4. property excluded by a valid agreement,
  5. any judgment obtained by one spouse against the other during the marriage, and
  6. property obtained before the marriage.

First off, I realize the non-sequitur that (number 6 of the exceptions) if property was obtained before the marriage, it was not obtained during the marriage, but that is how the statute was written. There are also provisions for appreciation of non-marital property and income derived from non-marital property, but that is beyond the scope of this posting.

The new law made small changes to several of the items listed above, and even added a new item as number 6.5, however, what I will address is an exception which the courts have carved out to the provision that property acquired before the marriage is non-marital.  That exception is referred to as the doctrine of (property acquired) “in contemplation of marriage.” The doctrine was first directly adopted by the courts of the second district in 1990.  In that case, IRMO, Jacks

  1. Williams, 200 Ill.App.3d 112 (2nd Dist., 1990) the Court held that even a home purchased

prior to the marriage, if it was purchased in contemplation of that marriage with the intent that the parties live there after the marriage, was marital property to be divided by the court in a divorce proceeding. The Court in that case determined that it did not go against the legislative intent of the statute to find that property purchased before the marriage was “marital property” because it was the intent of the parties that the property be marital in nature. To determine if the house was purchased in contemplation of marriage the Court looked at the circumstances surrounding the purchase of the house. The Court looked at thing like how long prior to the marriage the home was purchased, where the funds for the down payment came, who selected the house, and how title was held. Needless to say this could lead to increased litigation during a divorce because for most parties the home was once the largest asset with the most marital equity.

The new law effective January 1, 2017, clarified the issue of whether the doctrine of “in contemplation of marriage” goes against the intent of the legislature that property obtained before the marriage in non-marital. The new law specifically says that “property acquired prior to a marriage that would otherwise be non-marital property shall not be deemed to be marital property solely because the property was acquired in contemplation of marriage.” The new law makes clear that the intent of the legislature was that if you purchased a house before the marriage and that house is titled solely in your name, it is non-marital property, period.