Chicago Divorce Lawyers & Attorneys

It is amazing how often a person who is physically separated, yet still married, will go out and purchase a separate property in his or her own name.  The question arises as to whether or not that property is marital or not?

Under Section 503(b), there is a presumption that property is marital until there is a judgment of dissolution or judgment for invalidity.  Thus, property acquired after a physical separation is presumed to be marital.  (Marriage of Steele).
In re Marriage of Morris, the parties were married in 1967 and lived together for only 2 years.  Over twenty years after their separation, but prior to any marital judgment, the husband won the lottery.  Because there was no “shared enterprise” in the marriage, the trial court awarded the total winnings to the husband.  The Appellate Court reversed, holding that all relevant factors contained in the IMDMA Section 503(d) should have been considered.

Interestingly, a party can stop the accrual of marital property after a physical separation pursuant to the IMDMA, Section 503(a)(3) by obtaining a judgment of legal separation.  In a protracted case, it may be valuable to stop the accrual of marital property with a judgment of legal separation while there is a pending dissolution case.