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Are Gifts Considered Marital Property in an Illinois Divorce?

Posted on in Divorce

Wheaton divorce attorneysWhen a couple divorces, they are separating in more ways than one. All of the assets that were acquired during the marriage have to be divided up. The “marital estate” can include monetary funds, as well as property such as a house, vehicles, plus personal possessions and gifts. Illinois is an “equitable distribution” state, which means property is divided fairly but not necessarily equally. Gifts given between spouses or received from a third party can cause conflict when it comes to dividing assets during a divorce, especially in a contentious break-up. 

Marital Property Versus Non-Marital Property

Under Illinois law, marital property is property that was acquired during the marriage, and non-marital property is typically property a spouse had before the marriage or acquired during the marriage by inheritance or gift. Non-marital property is considered “separate property” of each spouse and marital property will be divided between the couple if they split up. In most scenarios, an asset given to one spouse by any third party is considered non-marital property. Gifts such as these can include jewelry, clothing, furniture, cash, vehicles, artwork, almost anything. However, the spouse claiming a gift as non-marital property may be required to prove in court that it was indeed a gift.

Gifts given between spouses throughout the marriage and before the couple parts ways are considered marital property that must be accounted for, valued, and distributed as part of the marital estate. The only exception to this rule is if someone claims it to be separate property of the recipient spouse. The spouse who claims that property acquired during the marriage is separate property must prove at least one of the following: 

  • The property was acquired by gift or inheritance from a third-party during the marriage;
  • The property was acquired by gift from the other spouse within the marriage and there is documentation stating it was intended to be the recipient spouse’s separate property; or
  • The property was acquired within the marriage but was exchanged for separate property with no intention that it would ever be marital property.

Examples of Gifts as Marital Property

Gift for Both: Wedding presents are a common example of gifts that are marital property, because the wedding guests intended them to be used by the married couple.
Gift as a Loan: One of the ways to prove a gift was a loan intended to be repaid is by showing a promissory note or asking the person who gave the money what his or her intentions were. In the case of a loan, it would be considered marital debt that should be divided between spouses.
Gift as a Reward: A monetary gift may be considered compensation if it was given as a thank-you for help or if the recipient was expected to perform a service in return. As compensation, it would be considered marital property.
Gift by Inheritance: Money inherited by one spouse from another family member or friend may become marital property if it is commingled with other assets and is no longer an individual asset. However, if one spouse keeps it separate, it can still be considered non-marital property. 

Contact a Naperville Divorce Lawyer

If you are going through a divorce, determining exactly what constitutes marital property can be confusing, especially gifts received during the marriage. Anderson & Associates, P.C. are experienced in handling many types of divorce cases as well as Illinois’ equitable distribution laws. Their knowledgeable legal team will help you recover any property that is rightfully yours. To schedule a free consultation, call an Oak Brook divorce attorney today at 630-653-9400. 





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