Retained Corporate Earnings in a Dissolution of Marriage Proceeding

As president and sole shareholder, the husband has operated the company and devoted substantial efforts to its success, and his hard work has helped to develop the company into the profitable and valuable business it remains today. The other marital assets in the estate are modest, and your client believes she is entitled to “something” from this business after 25 years of marriage, irrespective of the fact that it is “non-marital” under state law (in this case, Illinois). How do you advise her under these circumstances? Can she assert any claim over the company's retained earnings or over its increase in value attributable to her husband's efforts? Is she entitled to any of the corporate retained earnings? How do you proceed?

Section 503(d) of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) commands the court to assign to each spouse her or his respective non-marital property and to divide the couple's marital property between them in just proportions upon dissolution of marriage. 750 ILCS 5/503(d). Marital property is presumed to encompass “all property acquired by either spouse ' ” during the marriage, regardless of how title is held. Non-marital property includes all property acquired by either spouse prior to the marriage (with limited exceptions), as well as any property acquired during the marriage that falls within certain statutory exceptions, including, for example, property acquired by gift, legacy, or descent.