Can I Get More Marital Property if My Spouse has a Significant Non-Marital Estate?

Often times our clients have received either an inheritance or have a pre-nuptial agreement that awards them a certain amount of non-marital property.  Other times the parties have non-marital real estate with significant equity.  In these situations, some parties feel its a disadvantage to divide the marital estate equally if one of the parties will walk away with a significant non-marital estate.

In certain instances the courts have allowed a disproportionate award of the marital estate to one spouse where the other has a significant amount of non-marital estate.  In In re the Marriage of Heroy, 895 N.E.2d 1025, 385 Ill. App. 3d 640, 324 Ill. Dec. 310 (Ill. App., 2008), the court affirmed the trial court’s ruling giving one party 55% of the marital estate and the other party 45%.  The court reasoned that, based on the parties’ 26-year marriage, the parties’ age and limited ability to earn income or acquire assets in the future, and  the value of the marital estate in comparison to one spouse’s significant non-marital estate, the court found it appropriate to award a disproportionate share of the assets to the other spouse.

There are two issues with this theory, however.  One, the court only allowed a deviation of 5% which does not necessarily equalize the parties’ assets.  In other words, if one party has a million dollars worth of non-marital assets and only $20,000 in marital, a 5% difference is only worth a couple of thousand dollars.  As such, clients in this situation should not expect the court to fully consider the non-marital estate and award the other party the majority of the marital estate.  It is the court’s discretion.

Every case is different, so it is hard to determine exactly how much the court would deviate from a 50/50 split, if it does at all.  Consult with a domestic relations attorney with your specific fact pattern to see if you qualify for a disproportionate share of the marital estate.

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