Getting married in Illinois might mean choosing between deep-dish and thin-crust for the reception, but if you’re tying the knot without a prenup (in Illinois, we call them premarital agreements), there’s another choice you may not have considered: What actually happens to your property if things don’t work out? Understanding Illinois’ property division rules can save you from surprises down the road, and might even spark a conversation about whether a prenup belongs on your wedding checklist. Illinois has very specific laws about how property gets divided in a divorce when there’s no prenup to guide the process. Understanding those rules can help you plan smarter, protect your future self, and prompt healthy and important conversations about whether a prenup could benefit both you and your fiancé.
Illinois is an “equitable distribution” state
First things first, Illinois is not a community property state. That means courts don’t automatically divide marital property 50/50. Instead, Illinois follows what’s called equitable distribution under the Illinois Marriage and Dissolution of Marriage Act. “Equitable” doesn’t always mean “equal.” It means fair. When a couple divorces without a prenup, the court steps in to figure out what counts as marital property versus what qualifies as separate property, and then divides the marital property in a way it deems fair. Judges have broad discretion and consider factors such as the length of the marriage, each spouse’s income and contributions, any non-marital property either spouse owns, their future earning potential, and even child custody arrangements. This approach is holistic and tailored, which can be a good thing, but it also means outcomes can be unpredictable. A tailored approach also means divorce cases can take longer, which often means more expensive billable hours.
What counts as marital vs. non-marital property?
This distinction is significant because only marital property is subject to division. Under Illinois law, marital property generally includes everything acquired by either spouse during the marriage. This can include wages, real estate, retirement contributions, and stock options, regardless of whose name is on the account or title. Non-marital property, sometimes called “separate property,” typically includes property owned before the marriage, inheritances or gifts given to one spouse, property excluded by a valid agreement (like a prenup!), property acquired after a legal separation, or passive income from non-marital property that isn’t deposited into a marital bank account.
But keep in mind that not all non-marital property is immune from distribution upon divorce. Problems arise when property is mixed or commingled. Commingling property can look like if one spouse owns a house before marriage but both spouses pay toward the mortgage or renovations during the marriage, or the couple lives in the house during the marriage. Without a prenup, this treatment of the separate property home can trigger reimbursement claims or disputes over appreciation in value. The 2005 Illinois appellate case, In re Marriage of Mouschovias, dealt with exactly this issue and highlighted how marital contributions to non-marital property can create complicated claims during divorce (In re Marriage of Mouschovias (2005)).
How do courts decide what’s fair?
Illinois courts don’t simply divide marital property in half. Instead, they apply the fairness factors outlined in the Illinois Marriage and Dissolution of Marriage Act. Judges look at the length of the marriage, each spouse’s financial and non-financial contributions (i.e., caregiving or homemaking), the spouses’ economic circumstances at the time of divorce, and whether either party has ongoing obligations from prior marriages, such as child support. They also weigh future earning capacity, educational differences, and whether spousal maintenance (aka “alimony”) is being awarded, since property division and maintenance are closely related. Tax consequences are considered too, ensuring neither party faces an unfair tax burden (750 ILCS 5/503).
One thing Illinois does not consider is marital misconduct. The state is “no-fault” when it comes to property division, so bad behavior like infidelity doesn’t affect who gets what even if that bad behavior caused the breakdown of the marriage (750 ILCS 5/503(d)). The courts are strictly focused on the financial picture when dividing assets. However, there are narrow exceptions if the marital misconduct affected the couple’s finances, like if a spouse drained a joint bank account to carry on an extramarital affair or racked up significant gambling debt.
Why “equitable” can be unpredictable
Equitable distribution gives judges a lot of flexibility, which can be helpful for tailoring fair outcomes but stressful for couples who want certainty, especially when they have different perspectives on what is “fair.” Without a prenup, you’re trusting the court to decide what’s fair, and results can vary widely. For example, in the 2008 case, In re Marriage of Heroy, the Illinois Supreme Court upheld a property division heavily favoring the lower-earning spouse because she had supported her husband’s career for decades. In contrast, the 2012 case, In re Marriage of Romano, awarded a business interest entirely to one spouse but balanced the award with other assets. These cases show how “equitable” doesn’t always mean equal, and why couples often prefer the predictability of a prenup.
What happens to debts?
Debts are treated much like assets in a divorce. If they’re incurred during the marriage, they’re generally considered marital debts and divided equitably. This includes things like mortgages, credit card balances, and car loans, even if only one spouse’s name is on the account. Without a prenup spelling out who’s responsible for what, the court makes all of the decisions, and its choices might surprise you, especially if one spouse earns significantly more or is better positioned to pay off those obligations. A prenup allows the couple to say each debt the other spouse has individually during the marriage is a non-marital debt.
Retirement accounts and pensions
Retirement savings are often a couple’s largest asset, and they’re very much on the table in divorce. Illinois law treats the portion of retirement benefits earned during the marriage as marital property, even if the account is in just one spouse’s name. Dividing these accounts usually requires a Qualified Domestic Relations Order (QDRO), which tells the plan administrator how to split the funds. This is one area where a prenup can be especially valuable, because it can clarify ownership and division ahead of time and save both parties from expensive litigation later.
Spousal maintenance and property division
Although property division and spousal maintenance (aka “alimony”) are technically separate issues, they influence each other in Illinois. Courts consider the outcome of the property division when deciding whether to award maintenance and how much. For example, if one spouse walks away with most of the marital assets, the court may reduce or deny maintenance. Conversely, if the property division leaves one spouse with fewer resources, the court may award maintenance to level the playing field.
Why not having a prenup matters
Without a prenup, all these decisions are made by the court if you and your spouse can’t reach an agreement on your own. That means more legal fees, more stress, and less control over the outcome. Prenups allow couples to define what’s marital, what’s separate, and how property will be divided, creating clarity and reducing conflict if divorce ever happens. And prenups aren’t just for the ultra-wealthy. They’re particularly helpful for blended families, business owners, people entering marriage with significant premarital assets or debts, or those expecting an inheritance. A prenup provides peace of mind that the future, whatever it looks like, won’t upend the assets you’ve worked hard to build.
A real-world illustration
Let’s talk about Alex and Jamie, a Chicago couple who married without a prenup. Alex owns a condo purchased before the marriage, but Jamie contributes to the mortgage and pays for renovations during the marriage. Ten years later, they divorced. Without a prenup, Jamie argued for either a share of the appreciation in the condo’s value or reimbursement for marital funds used to improve it. That claim triggered a lengthy and expensive court battle. If Alex and Jamie had signed a prenup, then they could have agreed ahead of time that the condo and any future appreciation would remain Alex’s separate property. Or, in their prenup, they could have agreed that after five years of marriage, appreciation on the condo would be community property. That one document could have saved them thousands of dollars in legal fees and years of emotional strain by clarifying what happens to their assets in a divorce.
The bottom line on property division in Illinois
In Illinois, dividing property without a prenup is guided by fairness rather than rigid formulas. Marital property is split equitably, non-marital property is generally excluded, and mixed property can quickly become contentious. Judges have broad discretion, and their decisions regarding property division can lead to unpredictable and undesirable outcomes. A prenup creates clarity, encourages financial transparency in marriage, and allows you both to dictate what happens to your assets if a divorce were to occur in the future. If you’re considering adding a prenup to your wedding to-do list, you’re already on the path to a safer financial future. Now, go have those important financial conversations with your fiancé, and start your marriage on the right track!
Mathew Kerbis is The Subscription Attorney. He helps people and business owners with their daily and ongoing legal needs. As part of his service to clients, he helps them plan for marriage with premarital agreements, a/k/a prenups. Mathew is a proud member of the HelloPrenup attorney network where he has agreed to affordable fixed fee pricing for HelloPrenup clients without needing to subscribe to his law firm.
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