Posted on June 6, 2016

In Illinois, If I Remarry The Same Person, Are Assets Divided Again?

After years of practicing family law in Chicago, Illinois, I’ve found that remarrying the same person is pretty common. However, divorcing that same person a second time is also common.

“[T]he following… is known as “non-marital property”: …any judgment or property obtained by judgment awarded to a spouse from the other spouse [this is the award from the first marriage];

property acquired before the marriage [this only refers to the current marriage], except as it relates to retirement plans that may have both marital and non-marital characteristics” 750 ILCS 5/503(a)(5),(6)

But what usually happens is that non-marital property from the first marriage becomes “comingled,” or combined with marital property and becomes entirely marital. This usually happens via purchasing new property together with non-marital funds. 750 ILCS 5/503(c)(2) states that “If marital and non-marital property are commingled into a newly acquired property resulting in a loss of identity of the contributing estates, the commingled property shall be deemed transmuted to marital property.”

The fact that you put non-marital funds into a marital account, and thus “commingled” them, does not automatically change everything into marital property. You would need to give detailed information to your attorney about the “history” of these non-marital funds.

There may some confusion about the division of assets in a first marriage because child support and maintenance awards from a first divorce are extinguished by a second marriage.

“[T]he vast weight of authority from other jurisdictions…hold[s] that upon remarriage of the parties to each other, the prior divorce decree is annulled and rendered void. The parties are restored to their rights as if they had never been divorced. After remarriage, the parties’ relationship to the children and the duty to furnish support become exactly as they were before the divorce and upon the showing of remarriage, judgment for custody or for an amount for support of the children cannot be maintained based on the prior decree. The court simply lacks jurisdiction to reexamine the prior decree.” Ringstrom v. Ringstrom, 101 Ill. App. 3d 677, 679 (Ill. App. Ct. 1981)

But does this apply for division of assets?

Illinois case law says the first divorce’s division of assets is now void.

“[T]he trial court in a first divorce action is divested of further jurisdiction with regard to division of property upon the subsequent remarriage and redivorce of the parties. We believe this rule is consistent with the policies of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 101 et seq.) and would, if followed, foster the orderly administration of justice.” In re Marriage of Leon, 404 NE 2d 1071 – Ill: Appellate Court, 3rd Dist. 1980

In re Marriage of Leon has been held not to go as far as the plain language that “the first divorce action is divested of further jurisdiction with regard to division of property upon the subsequent remarriage.”

“Leon did not hold that the remarriage of the parties rendered the earlier divorce decree null and void. Leon merely held that a second divorce of the same parties supersedes their first divorce decree and divests the court of jurisdiction to enforce the first decree…a division of marital property which has been effected, executed, and completed is not nullified by the remarriage of the parties. Should the parties remarry, they come into the marriage with respect to this property as if they had never been married. However, with respect to provisions of the divorce decree which have not been fully executed, upon remarriage of the parties, no action may be brought to enforce those provisions.” In re Marriage of Parks, 630 NE 2d 509 – Ill: Appellate Court, 5th Dist. 1994

I encourage the reader to read the above case law slowly as it contains negative logic. In re Marriage of Parks says “Past divisions of property which have been fully effected, executed and completed are NOT nullified” but the opinion does not say that past divisions of property that were not effected, executed and completed MUST be nullified.

In fact, In re Marriage of Parks specifically allows unresolved issues from the first divorce to be brought back up in the second divorce.

“[W]e wish to make clear that we do not hereby hold that the issue of Larry’s failure to pay Shirley the full $5,000 ordered in the first divorce decree may not be raised as an issue in any pending divorce proceedings.” In re Marriage of Parks, 630 NE 2d 509 – Ill: Appellate Court, 5th Dist. 1994
A subsequent case, In re Marriage of Mitchell, frames how to think of assets and obligations from two different marriages and divorce actions.
“llinois law provides that past-due child support payments are a vested right of the receiving spouse that cannot be modified by the court retroactively. This merely begs the question because calling something a vested right implies the existence of an enforceable obligation to begin with. Because the prior decree is unenforceable as to installments accruing after the parties’ remarriage, the receiving spouse cannot have a vested right to those payments. Here, the court awarded petitioner an arrearage for the payments that were due before the remarriage and respondent is not challenging that ruling. Petitioner cannot claim a vested right in payments rendered unenforceable by the parties’ remarriage.” In re Marriage of Mitchell, 745 NE 2d 167 – Ill: Appellate Court, 2nd Dist. 2001 (Citations Omitted)
In re Marriage of Mitchell outlines that there are two separate periods where a parent would be entitled to child support: 1) after the 1st divorce and before the 2nd marriage, and 2) support owed after the 2nd divorce has commenced. The same logic would award a party marital assets: 1) after the first marriage and before the first divorce and 2) after the 2nd marriage and before the 2nd divorce has finalized.

Finally, there is on-point persuasive authority from the Massachusetts Supreme Court (which cites Illinois precedent) that says the previous division of assets remains (at least under Massachusetts’ statutes)

“”After remarriage, the parties’ relationship to the children and the duty to furnish support become exactly as they were before the divorce ….” Ringstrom v. Ringstrom, 101 Ill.App.3d 677, 57 Ill.Dec. 193, 428 N.E.2d 743, 744 (1981)).
The same rationale is not applicable, however, to a prior division of property. Just as marriage does not unify the property acquired by each spouse before marriage as marital property, remarriage does not reunify the property of each spouse as marital property. Rather, pursuant to 19-A M.R.S.A. § 953(2) (1998 & Supp.2001), each party retains the property with which they entered the marriage as nonmarital property. Upon divorce, the court ordinarily distributes such nonmarital property to the spouse who acquired it before the marriage, unless by some action of the parties the property has become part of the marital estate.[1] See 19-A M.R.S.A. § 953(1) (1998). The result is the same if the parties marry former spouses; the parties retain as nonmarital the property with which they entered the second marriage.” Wooldridge v. Wooldridge, 791 A. 2d 107 – Me: Supreme Judicial Court 2002

Contact my Chicago law office today to learn more about what to do in your second divorce.

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Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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