Posted on June 17, 2024

Unjust Enrichment In An Illinois Divorce

Illinois divorce courts do not split a divorcing couples’ assets 50/50 to each party.

Illinois divorce courts do not split up a couple’s non-marital assets at all. “[An Illinois divorce] court shall assign each spouse’s non-marital property to that spouse.” 750 ILCS 5/503(d)

Any assets deemed marital are then divided based on what the court feels is “just.”

An Illinois divorce court “shall divide the marital property without regard to marital misconduct in just proportions” 750 ILCS 5/503(d)

“The Act does not require an equal division of marital property, but an equitable division” In re Marriage of Jones, 543 NE 2d 119 – Ill: Appellate Court, 1st Dist. 1989

If you are not happy with whatever “equitable division” your Illinois divorce judge is seeming to arrive at, you can file an additional claim of “unjust enrichment.”

Unjust Enrichment Is A Separate Claim That Can Be Included In An Illinois Divorce

“Illinois recognize[s] an independent cause of action for unjust enrichment.” Peddinghaus v. Peddinghaus, 692 NE 2d 1221 – Ill: Appellate Court, 1st Dist., 1st Div. 1998

An independently pled claim of unjust enrichment can be made within an Illinois divorce.

“[An Illinois] trial court could, in the exercise of its inherent equitable authority, grant relief pursuant to a claim for unjust enrichment presented in conjunction with a dissolution petition.” In re Marriage of Fahy, 567 NE 2d 552 – Ill: Appellate Court, 1st Dist., 3rd Div. 1991

Unjust enrichment is a pretty simple concept that even a toddler could understand and appreciate: someone else has something that I should probably have.

“The doctrine of unjust enrichment underlies a number of legal and equitable actions and remedies, including the equitable remedy of constructive trust and the legal actions of assumpsit and restitution or quasi-contract. To state a cause of action based on a theory of unjust enrichment, a plaintiff must allege that the defendant has unjustly retained a benefit to the plaintiff’s detriment, and that defendant’s retention of the benefit violates the fundamental principles of justice, equity, and good conscience.” HPI Health Care Services, Inc. v. Mt. Vernon Hospital, Inc., 131 Ill. 2d 145, 160 (Ill. 1989)

In a divorce any allocation of marital or non-marital assets could be argued to be an unjust enrichment to the party who is allocated that asset. But, before the divorce is finished…nothing has been allocated yet to establish an unjust enrichment. The possession of the assets prior to the final allocation may, however, allow for an unjust enrichment claim. An unjust enrichment claim may be especially persuasive if the assets have been deemed non-marital despite contributions by both spouses or marital despite the unique contribution of one spouse.

Unjust enrichment is pretty loosey-goosey and gets around the requirement of dividing marital assets after “considering all relevant factors” 750 ILCS 5/503(d)

“Unjust enrichment does not require any wrongdoing on the part of the enriched party, but only that property is held by him under such circumstances that in equity and good conscience he ought not to retain it.” Appelman v. Appelman, 410 NE 2d 199 – Ill: Appellate Court, 1st Dist. 1980

Defenses To An Unjust Enrichment Claim In An Illinois Divorce

There are two problem though with an unjust enrichment claim in an Illinois divorce.

First, most unjust enrichments in an Illinois divorce look a lot like a gift from one party to the other.

Unjust enrichment is “the retention of a benefit conferred by another not as a gift, but instead in circumstances where compensation is reasonably expected.” Black’s Law Dictionary (11th ed. 2019)

In a marriage, if one party now has non-marital property that was the other party’s property or has marital property that was once non-marital property then that property was probably transferred via a gift.

A second problem for unjust enrichment claims in an Illinois divorce is that unjust enrichment should only be brought if there is no other available law to address one spouse unfairly keeping an asset.

“The theory of unjust enrichment is an equitable remedy based upon a contract implied in law.  The basis for the unjust-enrichment doctrine is that no one ought to enrich himself unjustly at the expense of another. 

Because it is an equitable remedy, unjust enrichment is only available when there is no adequate remedy at law.”  Nesby v. Country Mutual Insurance Co., 346 Ill. App. 3d 564, 567 (Ill. App. Ct. 2004)(citations omitted).

There is a whole statute, The Illinois Marriage And Dissolution of Marriage Act, that is set up to allocate all of a couple’s assets. Furthermore, before the divorce is final a court can order almost anything via 750 ILCS 5/501’s language that “[e]ither party may petition or move for:…other appropriate temporary relief” 750 ILCS 5/501

But, if you don’t like those statutes and the statutes likely legal results, you may be able to plead unjust enrichment as an alternative.

Unjust enrichment cannot be pled if the parties have an actual agreement as to the assets.

“Where there is a specific contract that governs the relationship of the parties, the doctrine of unjust enrichment has no application.” Nesby v. Country Mutual Insurance Co., 346 Ill. App. 3d 564, 567 (Ill. App. Ct. 2004)(citations omitted)

“[W]hile a plaintiff may plead breach of contract in one count and unjust enrichment and promissory estoppel in others, it may not include allegations of an express contract which governs the relationship of the parties, in the counts for unjust enrichment and promissory estoppel.” Guinn v. Hoskins Chevrolet, 361 Ill. App. 3d 575, 604 (2005)

“Because unjust enrichment is based on an implied contract, where there is a specific contract which governs the relationship of the parties, the doctrine of unjust enrichment has no application.” Peo. ex Rel. Hartigan v. E E Hauling, 153 Ill. 2d 473, 497 (Ill. 1992) (citations and quotations omitted)

The only valid agreement regarding assets are those that conform with a prenuptial or postnuptial agreement’s requirements. Any other agreement could be pursued via an unjust enrichment claim.

Unjust enrichment is an equitable remedy. Illinois divorce courts are not courts of equity. Illinois divorce courts are empowered by the Illinois Marriage and Dissolution of Marriage Act. However, Illinois divorce courts can distribute assets equitably.

“It is true that the trial court in a divorce action is not clothed with equitable powers but is limited to the authority conferred on it by statute. However, the court may adjust the equities of the parties in any property owned by them jointly.”  Gray v. Gray, 373 NE 2d 317 – Ill: Appellate Court, 2nd Dist. 1978

Therefore, an Illinois divorce court can allocate marital property to accommodate an unjust enrichment claim but an Illinois divorce court cannot order more than the total marital assets.

A final defense to an unjust enrichment claim found within a divorce filing is “so what?” Assets get divided “without regard to marital misconduct” and there is no other basis of bad act that would entitle one spouse to more assets than the other.

“[T]he term “unjust enrichment” is not descriptive of conduct which, standing alone, will justify an action for recovery. In order for a cause of action for unjust enrichment to exist, there must be some independent basis which establishes a duty on the part of the defendant to act and the defendant must have failed to abide by that duty.” Lewis v. Lead Industries Ass’n, Inc., 342 Ill. App. 3d 95, 105 (2003)(citations omitted)

Unjust Enrichment And Third Parties In An Illinois Divorce Case

Unjust enrichment is a very useful claim when third parties are included in the divorce. One could imagine great marital effort and money going towards a property owned by a third party (like a mother-in-law’s house).

Third parties are easily included in an Illinois divorce. “The court may join additional parties necessary and proper for the exercise of its authority under this Act.” 750 ILCS 5/403(d)

Including the third party in the divorce via an unjust enrichment would allow the divorcing parties to recover the increase in the value of the third parties’ property. Robinson v. Robinson, 429 NE 2d 183 – Ill: Appellate Court, 2nd Dist. 1981

An unjust enrichment claim would be superior to a mere claim of dissipation of assets because an unjust enrichment claim could recover the actual value of the property given to the third party and not the mere expense.

“The rationale for imposing an equitable lien upon the [property] of…other owners is to avoid their being unjustly enriched by improvements to which they did not contribute.  The case law makes clear that the proper measure of the extent of the equitable lien is not the cost of the improvements (which might inflict an injury upon a co-owner by making him pay for something valueless that he did not desire), but the enhanced value of the real estate. The increase in value must, of course, be proved by proper evidence.” Capogreco v. Capogreco, 378 NE 2d 279 – Ill: Appellate Court, 5th Dist. 1978

An unjust enrichment claim can underscore how the court should divide marital assets or an unjust enrichment claim could throw your opponent off balance by using common law claims in a division that is used to only one statutory claim: A petition for a dissolution of marriage.

An unjust enrichment claim is another arrow in your quiver as you approach your divorce…and you need as many as you can get. To learn more, contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney.

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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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