A marriage is a partnership…but all partnerships are not equal. Many marriages (especially the ones that end in divorce) have unequal contributions from the two spouses. One spouse will often have a high earning job and also manage the household’s finances while the other spouse devotes themselves to more frivolous, less lucrative activities.
After years of one-sided work and accumulation of wealth, a divorce will cause either party to ask, “Do I get to keep what I have earned?” How does each spouse’s contribution to the marital assets impact the final division of those marital assets in an Illinois divorce?
Marital Vs. Non-Marital Assets In An Illinois Divorce
Before considering the contribution of each spouse towards the accumulated wealth of a marriage, an Illinois divorce court must consider whether assets are marital at all.
“The court shall make specific factual findings as to its classification of assets as marital or non-marital property, values, and other factual findings supporting its property award.” 750 ILCS 5/503(a)
Marital property is divisible in an Illinois divorce.
An Illinois divorce court “shall divide the marital property without regard to marital misconduct in just proportions” 750 ILCS 5/503(d)
Whereas, non-marital property is not divisible by an Illinois divorce court.
“[T]he court shall assign each spouse’s non-marital property to that spouse.” 750 ILCS 5/503(d)
The distinction between the two kinds of property is usually determined by when the property was acquired.
If an asset is bought, earned or came into the marriage after the wedding date, that asset is presumed to be marital.
“‘[M]arital property’ means all property, including debts and other obligations, acquired by either spouse subsequent to the marriage” 750 ILCS 5/503(a)
“For purposes of distribution of property, all property acquired by either spouse after the marriage and before a judgment of dissolution of marriage or declaration of invalidity of marriage is presumed marital property.” 750 ILCS 5/503(b)
Assets that have an acquisition date before the wedding date will be presumed to be non-marital.
“[N]on-marital property” [is] property acquired before the marriage” 750 ILCS 5/503(a)(6)
Beyond the marriage date determining whether an asset is marital or not, other factors can make post-marriage acquisitions non-marital in nature.
“[T]he following…which is known as “non-marital property”:
(1) property acquired by gift, legacy or descent or property acquired in exchange for such property;
(2) property acquired in exchange for property acquired before the marriage;
(3) property acquired by a spouse after a judgment of legal separation;
(4) property excluded by valid agreement of the parties, including a premarital agreement or a postnuptial agreement;
…
(6) property acquired before the marriage, except as it relates to retirement plans that may have both marital and non-marital characteristics;
…
(7) the increase in value of non-marital property, irrespective of whether the increase results from a contribution of marital property, non-marital property, the personal effort of a spouse, or otherwise, subject to the right of reimbursement provided in subsection (c) of this Section; and
(8) income from property acquired by a method listed in paragraphs (1) through (7) of this subsection if the income is not attributable to the personal effort of a spouse.” 750 ILCS 5/503(a)
Contributions TO a spouse from outside the marriage during the marriage that do not qualify under an exception are presumed to be marital property.
“[R]emuneration to a spouse, in whatever form, during the marriage is considered marital property.” In re Marriage of Phillips, 229 Ill. App. 3d 809, 817 (1992)
Unless it is crystal clear that the property is non-marital, an Illinois court will determine that property to be marital and, thus, divisible.
“Any doubt as to the nature of the property must be resolved in favor of the finding that it is marital” In re Marriage of Steel, 2011 IL App (2d) 080974
Once deemed marital, an Illinois court can consider who actually earned and maintained the property when dividing said property.
A Spouse’s Contribution To Marital Property In An Illinois Divorce
An Illinois divorce court “shall divide the marital property without regard to marital misconduct in just proportions considering all relevant factors, including:
(1) each party’s contribution to the acquisition, preservation, or increase or decrease in value of the marital or non-marital property” 750 ILCS 5/503(d)(1)
The statute does not elaborate on what “just proportions” are. Each individual Illinois divorce judge may determine what constitutes a just proportion based on the evidence the parties present.
“[I]t is the parties’ obligation to present the court with sufficient evidence of…[nature of] the property [and its value]” In re Marriage of Smith, 114 Ill. App. 3d 47, 54 (Ill. App. Ct. 1983)
One spouse’s work towards accumulating and preserving wealth may warrant that the wealth be awarded to them.
“A party’s greater financial contribution might support a disproportionate property award in favor of the contributing spouse.” In re Marriage of Brill, 87 NE 3d 302 – Ill: Appellate Court, 2nd Dist. 2017
“[A] party’s greater financial contribution may support a disproportionate property award in favor of the contributing spouse.” In re Marriage of Heroy, 895 NE 2d 1025 – Ill: Appellate Court, 1st Dist., 3rd Div. 2008
“[W]hen one spouse makes a greater contribution to the marital assets, the court may be justified in awarding him or her a larger share of the marital property.” In re Marriage of Jones, 543 NE 2d 119 – Ill: Appellate Court, 1st Dist. 1989
“A disproportionate award of marital property has been upheld where one party made substantial contributions during the marriage and the other party made few contributions.” In re Marriage of Guntren, 489 NE 2d 1120 – Ill: Appellate Court, 4th Dist. 1986
But, then again…maybe not.
“[A] spouse’s greater financial contributions do not necessarily entitle him or her to a greater share of the marital assets” In re Marriage of Scoville, 233 Ill.App.3d 746, 758, 174 Ill.Dec. 394, 598 N.E.2d 1026 (1992).
Most contributions to assets in a marriage really look like gifts to the marriage.
“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; provided, that no such reimbursement shall be made with respect to a contribution that is not retraceable by clear and convincing evidence or that was a gift[.]” 750 ILCS 5/503(c)(2)
“There [needs to be an] indication…that [a party] exercised exclusive control over the [contribution] or made it clear that he expected to receive the [contribution] back when the property was sold in any different fashion than he would receive back a marital contribution.” In re Marriage of Marx, 281 Ill. App. 3d 897, 902 (Ill. App. Ct. 1996)
Each case will be decided on its own merits.
“[E]ach case rests on its own facts” In re Marriage of Jones, 187 Ill. App. 3d 206, 222 (Ill. App. Ct. 1989)
The facts must be proven via the Rules of Evidence.
“In making the determination with respect to the contribution of each to the marital estate, it is up to the trial court to examine the evidence and give to it the weight the court determines that it deserves.” In re Marriage of Guntren, 489 NE 2d 1120 – Ill: Appellate Court, 4th Dist. 1986
“Special circumstances and equities must be alleged and proven, such as the contribution of money or services other than those normally performed in the marriage relationship which has directly or indirectly been used to acquire or enhance the value of the property.” Overton v. Overton, 287 NE 2d 47 – Ill: Appellate Court, 2nd Dist. 1972
Even if those facts clearly show that one spouse earned all of the money, saved all of the money and invested all of the money…those facts may still be balanced against other facts in favor of the other spouse.
Illinois divorce courts “shall divide the marital property without regard to marital misconduct in just proportions considering all relevant factors” 750 ILCS 5/503(d)(emphasis mine)
“[T]he financial contribution to the acquisition of marital assets is only one of several factors to be considered by the trial court in determining an equitable distribution of marital assets.” In re Marriage of Lee, 615 NE 2d 1314 – Ill: Appellate Court, 4th Dist. 1993
The other factors that can offset one spouse’s “contribution to the acquisition, preservation, or increase or decrease in value of the marital…property” are as follows:
(1) each party’s contribution to the acquisition, preservation, or increase or decrease in value of the marital or non-marital property, including (i) any decrease attributable to an advance from the parties’ marital estate under subsection (c-1)(2) of Section 501; (ii) the contribution of a spouse as a homemaker or to the family unit; and (iii)
(2) the dissipation by each party of the marital property, provided that a party’s claim of dissipation is subject to the following conditions:
…
(3) the value of the property assigned to each spouse;
(4) the duration of the marriage;
(5) the relevant economic circumstances of each spouse when the division of property is to become effective, including the desirability of awarding the family home, or the right to live therein for reasonable periods, to the spouse having the primary residence of the children;
(6) any obligations and rights arising from a prior marriage of either party;
(7) any prenuptial or postnuptial agreement of the parties;
(8) the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties;
(9) the custodial provisions for any children;
(10) whether the apportionment is in lieu of or in addition to maintenance;
(11) the reasonable opportunity of each spouse for future acquisition of capital assets and income; and
(12) the tax consequences of the property division upon the respective economic circumstances of the parties.” 750 ILCS 5/503(d)
In sum, contribution to the assets acquisition and preservation is never the only matter considered by an Illinois divorce court when dividing marital assets. The court has many objectives in dividing marital property and many way to achieve those objectives.
“The statute’s objectives are twofold. First, the disposition should recognize the contribution of each party to the marriage and should compensate that party. Second, the distribution should place each party in a position to begin anew.” In re Marriage of Agazim, 530 NE 2d 1110 – Ill: Appellate Court, 2nd Dist. 1988 (citations omitted)
When both spouses worked and records are sufficient that each spouse can say with certainty what their contributions were to the marital estate, a disproportionate share may be awarded to the spouse who earned and saved more money. More typically, when one spouse making all the money while the other spouse makes almost none, the other spouse is invariably a homemaker (or at least claims to be)
To complicate matters, most assets are constantly appreciating or depreciating in value. So, any contribution will have an associated appreciation or depreciation as well. The court may consider the original contribution and allow for an appreciation or depreciation of that contribution when allocating marital property. In re Marriage of Hagshenas, 234 Ill. App. 3d 178, 202 (Ill. App. Ct. 1992)
Homemakers and Contribution To Marital Assets In An Illinois Divorce
“[T]he [Illinois Marriage and Dissolution of Marriage] Act expressly directs the court to consider contributions of a spouse as a homemaker or to the family.” In re Marriage of Aschwanden, 411 NE 2d 238 – Ill: Supreme Court 1980
The homemaker’s contribution to the marriage cannot really be measured in dollars and cents. This amorphous contribution inevitably leads the court closer to a 50/50 equitable division of marital assets.
“We do not agree that [the homemaker spouse’s] contribution to the acquisition of the marital property was minimal. [the homemaker spouse] completed necessary household chores that helped [the working spouse] continue working on the farm. During the marriage, [the homemaker spouse] worked, cared for three children and paid for many of the family’s day-to-day expenses.” In re Marriage of Nelson, 698 NE 2d 1084 – Ill: Appellate Court, 3rd Dist. 1998
“While we perceive some difficulty in assessing the value to be placed on the different forms of contribution, we caution against placing too much emphasis on monetary contributions over nonmonetary contributions. At all times, the court is to keep in mind that the ultimate objective is to achieve a division of property which is in “just proportions.”” In re Marriage of Aschwanden, 411 NE 2d 238 – Ill: Supreme Court 1980
The only way to really distinguish a homemaker’s contribution from financial contribution to a marital estate is to point out that the marriage was not really that long. Therefore, the homemaker’s contribution to the marital estate could not have been that significant.
“On a long-term marriage, the source of the assets in acquiring marital property becomes less of a factor, and a spouse’s role as homemaker becomes greater.” In re Marriage of Scoville, 233 Ill.App.3d 746, 758, 174 Ill.Dec. 394, 598 N.E.2d 1026 (1992).
“It is also true that in marriages of long duration a spouse’s contributions as a homemaker take on greater importance in comparison to the source of marital assets than in short-term marriages.” In re Marriage of Marriott, 636 NE 2d 1141 – Ill: Appellate Court, 2nd Dist. 1994
Contribution To Marital Assets After An Illinois Divorce Is Filed
If the court is not receptive to a contribution argument for disproportionate division of marital assets acquired during the marriage, the court may distinguish between the assets acquired before the filing of the Petition For Dissolution of Marriage and assets acquired after the filing of the Petition and before the Judgment of Dissolution of Marriage is entered.
Assets acquired before a divorce is finalized are still marital assets and thus, divisible.
“As a general rule under the statute, property acquired by either spouse after the marriage, but prior to a judgment of dissolution, is presumed to be marital property regardless of how title is actually held.” In re Marriage of Foster, 17 NE 3d 781 – Ill: Appellate Court, 1st Dist., 6th Div. 2014
The statute says that an Illinois divorce court can consider “whether the contribution is after the commencement of a proceeding for dissolution of marriage or declaration of invalidity of marriage” 750 ILCS 5/503(d)(1)(iii)
This provides a second argument that contribution post-separation should have greater weight than contributions prior to the separation.
A court may even consider the date of separation as the valuation date for the asset in question so as not to allow a party to benefit from post-separation efforts.
“[I]n determining the value of the marital and non-marital property for purposes of dividing the property, has the discretion to use the date of the trial or such other date as agreed upon by the parties, or ordered by the court within its discretion, for purposes of determining the value of assets or property.” 750 ILCS 5/503(f)
Asking for a separation date valuation eliminates the non-contributing spouse’s interest to extend the divorce as long as possible in order to claim more marital property.
Illinois divorce courts do not encourage excessive litigation and can deny an award of assets acquired during the litigation and even award attorney fees to the spouse who is not delaying finality of the divorce.
“[T]oo much time was spent on all matters due to the parties’ failure to compromise.” In re Marriage of Walters, 604 NE 2d 432 – Ill: Appellate Court, 2nd Dist. 1992
If you earned all the money during your relationship and you want your fair share contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney. Conversely, if you supported someone while they were earning and saving money during the marriage, contact me to let them know how that money should be properly divided.
