When it comes to premarital or non-marital property, title matters.
It’s a common misconception that once you are married, half of everything each spouse owns belongs to the other spouse. As a result, people often see little harm in transferring a pre-marital asset titled in their own name into joint ownership. This can be a costly mistake in a later divorce. If you have a pre-marital asset that you keep in your own name, you have a strong claim that the property is your non-marital property. As a result, it would be distributed to you in a divorce. In Illinois divorce cases, the court does not substantially offset non-marital property through awarding a greater share of the marital property to the other spouse.
There is provision in the 2016 Rewrite to Illinois family law that that expands the pie of what can be determined to be non-marital property. Assume that the title to non-marital was transferred during the marriage to a form of co-ownership. Illinois law presumes a gift to the marriage. Yet under the 2016 Rewrite, property that was transferred into a form of joint ownership remains non-marital if you can prove by clear-and-convincing evidence that the transfer was done for estate purposes or tax planning purposes. Other evidence might establish that the transfer was not intended to be a gift.
