dissenting:
I agree with the majority’s determination that the lottery winnings were marital property. I dissent because I do not believe the trial court’s apportionment of the marital property constituted an abuse of discretion.
In In re Marriage of Mahaffey (1990), 206 Ill. App. 3d 859, cited by the majority, one spouse purchased a winning ticket in the Illinois lottery worth approximately $3.6 million. On appeal, the court rejected the petitioner’s contention that the lottery winnings should be treated as income rather than marital property. The fact that the payments were made solely in the name of the petitioner was irrelevant to the court’s determination that the winnings should be treated as marital property. Since the petitioner acquired the right to receive future payments during the course of the marriage, the winnings were determined to constitute marital property. I do not dispute this rationale. However, I believe the unusual circumstances surrounding the marriage of the parties in the instant case justifies a disproportionate award.
The majority declares that the theory advanced by section 503 of the Act (750 ILCS 5/503 (West 1992)) is that marriage is a "shared enterprise” or a "partnership.” As noted in Mahaffey (206 Ill. App. 3d at 866), a marriage is similar to a commercial partnership, wherein the parties share duties and divide their labor toward a common goal. The concept of marriage as a "shared enterprise” reflects the modern day recognition that it takes the joint efforts of married persons to acquire property. Mahaffey, 206 Ill. App. 3d at 868.
Contrary to Mahaffey, wherein the parties remained married for 20 years, gave birth to two children, and both contributed to the stability of the family, the parties in this case did not have a family. Although the couple remained married for 26 years, they separated after two years and lived apart for 24 years. It is undisputed that the parties lived entirely separate lives. The petitioner did not contribute to the respondent’s financial support and vice versa. The parties maintained separate residences and were involved in other personal relationships. I believe that the majority places undue emphasis on evidence that, subsequent to the separation, the couple kept in contact by telephone and met and engaged in sexual relations on numerous occasions. This fact is irrelevant since it is undisputed that after the parties separated, they contributed little or nothing to the marriage as a "shared enterprise.”
The purpose of section 503(d) of the Act is to divide marital property in just proportions, considering all relevant factors, including statutory factors. (750 ILCS 5/503(d) (West 1992).) The Act directs the trial court to consider, inter alia, the relative contributions of each party to the marriage, the duration of the marriage, the economic circumstances of each spouse, the age, health, income and employability of the parties, and the custodial provisions for any children. Given the unusual circumstances surrounding this marriage, many of these factors are inapplicable.
Furthermore, I disagree with the majority’s assertion that the trial court’s refusal to award the respondent a portion of the lottery winnings recognizes the date of the parties’ physical separation as a "common law divorce.” The term "common law divorce” surfaced in In re Marriage of Brooks (1985), 138 Ill. App. 3d 252, 259. In Brooks, the appellate court rejected the petitioner’s suggestion that the physical separation of the parties be used as the termination date of the respondent’s right to marital property. In the court’s view, such a holding would effectually create "common law divorce,” which is contrary to the law and policy of this State. Accord In re Marriage of Steele (1991), 212 Ill. App. 3d 425, 432.
In Brooks and Steele, the courts determined that the date of the parties’ physical separation would not terminate the accrual of marital property. In the instant case, we recognize that the lottery winnings are marital property. Contrary to the majority, I dispute that failing to award the respondent a portion of the lottery winnings would recognize the date of their physical separation as a "common law divorce.” Based on the unusual circumstances of the marriage and the fact that the parties did not contribute toward the marriage as a "shared enterprise” for 24 years, I believe the trial court’s apportionment did not constitute an abuse of discretion. For these reasons, I respectfully dissent.