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The Drafter’s Commentary on In Re Marriage of Henke
By Charles J. Fleck
"It is difficult to say who does you the most mischief, enemies with the worse intentions, or friends with the best."1
Difficult cases make bad law. The analysis in the previous article presents the correct approach in classifying commingled marital and non-marital property and maintaining the relationship of contributions and reimbursements with respect to that property. Sometimes for the sake of brevity or the ease of analysis, courts and lawyers will overlook the complex rules necessary to classify marital and non-marital property or to embark upon the occasional intricate analysis necessary to determine contributions and reimbursements.
Such shortcuts may happen at both the trial and appellate court levels. In complicated cases, a trial judge may be inundated with piles of documents and exhibits and expected to appropriately ingest, digest and analyze the myriad of facts and legal implications of the evidence in order to render a just, legally logical decision. Couple this with a party’s disinclination or inability to present a clear, understandable case with respect to classification, commingled estates and reimbursements, and one has the makings of a decision that defies the logic and intent of the statute. Under such handicaps, ruling on a complex divorce matter is not an easy or insignificant task. Therefore, it is very tempting to throw one’s arms up in frustration, wink at the law, and do the right thing by applying some "fireside equity." In my opinion, the Henke case falls into this category.2
Unquestionably, the checking account in the Henke case was non-marital property. The language of the statute and its application are clear and unambiguous. Whenever a court diverts from the statutory scheme and begins its analysis with the phrase "We believe that to hold that those funds were transmuted to non-marital property would contravene the intent behind section 503(c) of the Act (750 ILCS 5/503(c)),"3 – Look Out! There may be some well-intended mischief afoot. If fairness were the issue, there are many ways (some articulated in the above article) to afford justice without rewriting legislation.
In justification of its detour, the appellate court supported its position with a number of observations:
1. The record did not show the checking account balance at the time of the marriage.
Answer: The amount of money in the checking account at the time of marriage is irrelevant to the issue of classification. The account was non-marital and remains non-marital.
2. Sixteen years of marital funds were contributed to the non-marital account.
Answer: The marital contributions clearly became non-marital property upon deposit into the account. There is nothing contained in 503(c) that states otherwise.
3. Presumably, the amount of marital contributions to the non-marital account exceeded the amount of non-marital money in the account at the time of the marriage.
Answer: Nothing contained in 503 provides for transmutation of a non-marital asset if the total marital contributions exceed the value of the non-marital asset. To hold that the non-marital account was transmuted reverts back to the Smith decision and ignores the very intent and purpose of the amendment to Section 503, which was meant to tame transmutation.
4. Over the years the funds originally contained in the non-marital account and the subsequent marital contributions were used to pay family and household expenses.
Answer: Expenditures from a non-marital or marital account, for that matter, in no way determine the classification of the account. Section 503 is very specific in explaining how an asset is to be classified, and nowhere does it provide that the expenditure of the funds is a consideration in classifying whether an account is a marital or non-marital asset. Indeed, as this article points out, over the years the marital estate lost out on nothing because marital bills were paid with non-marital funds, although admittedly augmented with contributions from the marital estate.
Because the Henke result is logically incongruous with the statute, it is this author’s hope that future appellate courts will view the case as the anomaly it is. Blind adherence to Henke will turn the statute on its head, foment bitter litigation due to its inconsistency with prior, and more reasoned, decisions, and diminish predictability in the law. It is unfortunate, but thoughtless litigants may use the Henke transmutation ruling as a vehicle to justify an expensive and unnecessary trial, or to extract unfair settlements. If this should occur, the thousands of families who appear in our courts will be the losers, because the means to that end are in ready grasp.
"O mischief, thou art swift to enter the thoughts of desperate men".4
1 The New Dictionary of Thought ( Bulwer), Standard Book Company, MCMLX, at 413.
2 In re Marriage of Henke, 313 Ill. App. 3d 159, 728 N.E.2d 1137 (2d Dist. 2000).
3 Id.
4 The New Dictionary of Thought, supra note 1, at 413.
Charles J. Fleck is a principal in the firm of Schiller, DuCanto & Fleck. He served three terms in the Illinois General Assembly, where, as a member of the House Judiciary Committee, and served as chairman of the joint Senate-House Domestic Relations Subcommittee to reform divorce laws in Illinois. Later elected to the bench, he served as presiding judge of the Domestic Relations Division of the Cook County Circuit Court.
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