Property Division in an Illinois Divorce: Marital vs. Non-Marital Property
Illinois family law · Last reviewed October 8, 2026
Illinois is an equitable distribution state. In a dissolution of marriage, the court gives each spouse his or her non-marital property and divides the marital property "without regard to marital misconduct in just proportions," after weighing the factors in section 503(d) of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5). Just proportions are often close to equal, but they don't have to be.
What is marital property
The definition is broad and includes debts. 750 ILCS 5/503(a):
(a) For purposes of this Act, "marital property" means all property, including debts and other obligations, acquired by either spouse subsequent to the marriage, except the following, which is known as "non-marital property":
Property acquired during the marriage is presumed marital, however title is held, and the presumption can be overcome only by clear and convincing evidence (§ 503(b)(1)). Pensions earned during the marriage, and stock options and restricted stock granted during it, are presumed marital too.
What is non-marital property
Section 503(a) lists nine categories. In plain terms:
- Gifts, inheritances and bequests, and property acquired in exchange for them.
- Property acquired in exchange for property owned before the marriage.
- Property acquired after a judgment of legal separation.
- Property excluded by a valid agreement, including a premarital or postnuptial agreement.
- A judgment one spouse won against the other, with some exceptions.
- Property acquired before the marriage, with special rules for retirement plans of mixed character.
- Property bought with a loan secured only by non-marital property (marital money used to repay the loan counts as a contribution).
- The increase in value of non-marital property, subject to the reimbursement rules below.
- Income from non-marital property, unless it came from a spouse's personal effort.
Commingling
When marital and non-marital property are mixed, the result depends on whether the contributed property kept its identity (§ 503(c)). If it lost its identity, it becomes part of the estate that received it. A spouse can seek reimbursement for a contribution only if it can be traced "by clear and convincing evidence" and wasn't a gift. Personal effort spent on non-marital property earns the marital estate reimbursement only when the effort was significant and produced substantial appreciation, and the marital estate wasn't already compensated for it.
Keep inheritances and premarital savings in separate accounts if you want them to stay non-marital.
The 12 factors
The court considers "all relevant factors," including:
- each spouse's contributions to acquiring, preserving or changing the value of property, including as a homemaker or to the family unit, and contributions made after the case was filed;
- dissipation of marital property (see below);
- the value of the property assigned to each spouse;
- the length of the marriage;
- each spouse's economic circumstances, including the desirability of awarding the family home to the spouse with whom the children will mainly live;
- obligations from a prior marriage;
- any premarital or postnuptial agreement;
- each spouse's age, health, station, occupation, income, skills, employability, estate, liabilities and needs;
- the custodial arrangements for the children;
- whether the division is instead of, or in addition to, maintenance;
- each spouse's opportunity to acquire capital assets and income in the future; and
- the tax consequences.
Fault isn't on the list. Adultery doesn't shrink a spouse's share.
Dissipation: when a spouse wastes marital money
The statute doesn't define "dissipation." It generally refers to one spouse using marital money for purposes unrelated to the marriage while the marriage is breaking down. A spouse claiming it must follow strict rules in § 503(d)(2):
- File and serve a notice of intent to claim dissipation no later than 60 days before trial or 30 days after discovery closes, whichever is later.
- The notice must state when the marriage began breaking down, what property was dissipated, and when.
- There's a lookback limit: no dissipation counts if it happened more than 3 years before the claiming spouse knew or should have known of it, and never more than 5 years before the petition was filed.
The house
A home bought during the marriage is marital property. Factor (5) expressly weighs awarding it to the spouse who will have the children most of the time. The court can award the home to one spouse with offsetting assets to the other, or order it sold. During the case, a court can grant one spouse exclusive possession of the marital residence under § 501, after notice and a hearing.
Pensions and retirement accounts
Pension benefits earned during the marriage are presumed marital (§ 503(b)(2)). How the share is paid depends on the plan:
- Illinois public pensions (state employees, teachers, municipal and county systems and others) are divided by a Qualified Illinois Domestic Relations Order (QILDRO) under 40 ILCS 5/1-119. The order takes effect only after a certified copy is filed with the retirement system, and members who joined before July 1, 1999 must consent in writing.
- Private employer plans are divided by a qualified domestic relations order (QDRO), which the plan administrator reviews.
Debts
Marital property includes "debts and other obligations" taken on during the marriage, so debts are divided too. The court's order binds the spouses, not the lenders: if your former spouse is ordered to pay a joint credit card and doesn't, the creditor can still pursue you, and your remedy is to enforce the judgment.
Valuation
Property is valued as of "the date of the trial or such other date as agreed upon by the parties, or ordered by the court" (§ 503(f)), using a fair market value standard (§ 503(k)).
Pets
Section 503(n) addresses pets directly:
(n) If the court finds that a companion animal of the parties is a marital asset, it shall allocate the sole or joint ownership of and responsibility for a companion animal of the parties. In issuing an order under this subsection, the court shall take into consideration the well-being of the companion animal.
Service animals are excluded. A separate law taking effect January 1, 2027, the Companion Animal Custody Equity Act (Public Act 104-0613), adds factors for deciding who keeps a companion animal in possession disputes generally; it doesn't replace § 503(n).
Agreements
Most divorcing couples divide property in a marital settlement agreement. Under § 502, its terms bind the court unless the court finds the agreement unconscionable. Premarital agreements are governed by the Illinois Uniform Premarital Agreement Act (750 ILCS 10).
Frequently asked questions
Is Illinois a 50/50 state for divorce?
No. Illinois divides marital property "in just proportions" after weighing the § 503(d) factors. The split is often close to equal but doesn't have to be.
Is an inheritance marital property in Illinois?
No. Property acquired by gift, legacy or descent is non-marital, as is property acquired in exchange for it. But if you mix it with marital funds so it loses its identity, it can become marital.
Does adultery affect property division in Illinois?
No. Property is divided without regard to marital misconduct. Money spent on an affair while the marriage was breaking down can be a dissipation claim.
Who gets the house in an Illinois divorce?
It depends on the factors. The court may award it to the spouse with whom the children will mainly live, award it to one spouse with offsetting assets to the other, or order it sold.
How are pensions divided in an Illinois divorce?
The marital portion of a pension is divided by court order: a QILDRO for Illinois public pension systems, or a QDRO for private plans.
Who gets the dog in an Illinois divorce?
If the pet is a marital asset, the court allocates sole or joint ownership and responsibility, considering the animal's well-being.