Marital property is generally property that is acquired during marriage, is jointly owned by the spouses, and is subject to division upon divorce—whether the spouses reside in (1) an equitable distribution or common law property state or (2) in a community property state.

Marital property is distinct from separate property, which is generally property that a spouse acquired before marriage—or acquired by gift or inheritance during marriage—and is not subject to division upon divorce.

Community property states generally include Alaska, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. In these states, divorce courts generally start with the presumption that the marital property is owned equally by the spouses and will be divided equally upon divorce.

In other states—so-called equitable distribution or common law property states—the divorce court attempts to divide the spouses’ assets equitably (fairly) and may consider a spouse’s separate property in deciding to make an unequal division of the spouses’ marital property.

In practice, the difference between the division of assets in community property states and in equitable distribution states is sometimes not as great as it may seem, as the court in a community property state may have the discretion to divide the spouses’ community property on a 60-40, 70-30, or other unequal basis.

In Illinois, the regulation of marital property falls under the category of equitable distribution, as Illinois is not a community property state. Upon divorce, marital property—which includes assets and debts acquired during the marriage—is subject to division in a manner that the court deems fair, but not necessarily equal. This means that the court will consider various factors, such as each spouse's economic circumstances, contributions to the marriage, and the duration of the marriage, to determine an equitable division of property. Separate property, which is property acquired before the marriage or through gift or inheritance during the marriage, is typically not subject to division in a divorce. However, the appreciation of separate property during the marriage may be considered marital property in some cases. It's important to note that while equitable distribution aims to be fair, it does not guarantee a 50-50 split of marital assets. An attorney can provide specific guidance on how these principles may apply to an individual's situation in Illinois.