CHICAGO, IL – Spouses who brought property into their marriage often assume they can trace premarital funds to prove non-marital status in divorce, but Illinois has stricter rules than many states regarding commingling. Chicago divorce attorney Russell D. Knight of the Law Office of Russell D. Knight (https://rdklegal.com/tracing-and-commingling-assets-in-an-illinois-divorce/) guides clients through the complex process of establishing non-marital property claims and overcoming commingling presumptions.
According to Chicago divorce attorney Russell D. Knight, Illinois law allows property brought into the marriage to remain non-marital, but the rules for determining what assets have remained non-marital throughout the marriage are far more strict in Illinois than in other states. Under 750 ILCS 5/503(a), marital property means all property acquired by either spouse subsequent to the marriage, while property acquired before marriage is non-marital.
Chicago divorce attorney Russell D. Knight emphasizes that tracing requires identifying the source of the funds with clear and convincing evidence. The burden to make that showing is on the party claiming that the property is non-marital. “Any doubts as to the classification of property will be resolved in favor of finding that the property is marital property,” explains Knight. “In order to preserve property’s non-marital status, one must prove that the entire property was acquired exclusively by one of the methods listed in section 503(a).”
Attorney Knight notes that money is fungible and is often used to purchase items in any proportion, meaning items are frequently purchased using a mixture of non-marital money from before the marriage and marital money acquired afterward. This mix is called commingling. When marital and non-marital property are commingled into newly acquired property resulting in a loss of identity of the contributing estates, the commingled property is deemed transmuted to marital property.
The firm handles complex asset division cases throughout Chicago involving tracing and commingling issues. Illinois law provides that when one estate of property makes a contribution to another estate of property, the contributing estate shall be reimbursed from the estate receiving the contribution notwithstanding any transmutation. However, no such reimbursement shall be made with respect to a contribution that is not traceable by clear and convincing evidence or that was a gift.
Knight advises that the principle of transmutation is based on the presumption that the owner of the non-marital property intended to make a gift of the property to the marital estate. “The commingling of marital and non-marital assets must be sufficiently significant to raise a presumption of a gift of the property to the marital estate,” he observes. This presumption may be rebutted by clear and convincing evidence that no gift to the marital estate was intended.
One notable exception to commingling rules involves retirement accounts. Any retirement account started before marriage will have a non-marital contribution, while contributions subsequent to marriage are marital. “Despite everything else about commingling, this does not transmute the non-marital portion of a retirement account into marital property,” Knight points out. Financial software can now determine the non-marital portion of a retirement plan to the penny, and division is accomplished through a Qualified Domestic Relations Order.
About Law Office of Russell D. Knight:
The Law Office of Russell D. Knight is a Chicago-based family law firm dedicated to divorce, asset division, and complex financial disputes. Led by attorney Russell D. Knight, who has authored more than 750 articles on Illinois family law and been quoted by NBC News, Parents Magazine, and Newsweek, the firm provides direct client communication and strategic guidance. For consultations, contact the Law Office of Russell D. Knight.
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Phone: (773) 334-6311
Address:1165 N Clark St #700
City: Chicago
State: Illinois 60610
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Website: https://rdklegal.com/