At the divorce trial, the Trial Court held that the marital residence was husband’s non marital property. It ordered husband to reimburse the marital estate for monies it had contributed to build the marital residence. Wife argued that the residence was marital property. Wife appealed.

Husband had contributed a substantial amount of non-marital funds towards the cost of building the house and garage. So, the trial court believed it was presumptively non-marital.

However, the presumption that property acquired during the marriage is marital applies. Regardless of whether title is held individually or by the spouses in some form of co-ownership.

Moreover, a marital residence owned by both spouses, even if one spouse has furnished all the consideration for it out of non-marital funds, will be presumed to be marital property absent clear and convincing rebutting evidence.

The Appellate Court found the home, built by the parties during the marriage, was presumptively marital property. Husband contributed non-marital funds towards the home’s construction, as well as the lot on which it was built. But, marital funds from husband’s paychecks were used to partially satisfy the loan.

Under the circumstances, the presumption of marital property has not been overcome. We therefore reverse the trial court’s finding that the home was non-marital. We remand for recalculation of the home’s value and for determination by the court regarding any credit due for contributions of non-marital funds.

It was undisputed that the marital residence, including the lot and garage, was placed in some form of co-ownership during the marriage. There was absolutely no evidence offered to rebut the presumption of a gift from husband to the marriage of his non-marital contributions.

Instead, the evidence showed that both parties occupied the property as their residence. The real estate taxes on the property were paid from marital funds. Both parties contributed to the management and upkeep of the premises throughout the marriage.

We find that the trial court erred in ruling that it was free to ignore the presumption that the lot and garage were gifts to the marital estate.

IRMO Samardzija, 365 Ill.App.3d 702

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