Illinois Matrimonial & Family Law

Sick Days and Vacation Days

by Wes Cowell; updated 15 May 2015 -- suggest a correction

In Illinois, sick days and vacation days ARE marital property if cashed out prior to the conclusion of the divorce, but they are NOT marital property if still unexercised at the time of the divorce.  Need advice?  Call, leave your info, or scheduleschedule a consultation.

Mary and John Abrell married in 1984 and divorced twenty years later.  John was an attorney.  He took a job on nearly the day of his marriage working for the State of Illinois.  He worked for the State throughout the marriage.  At the time of the divorce John still had his attorney job with the state and had accumulated 115 unused sick days and 42 unused vacation days.

Mary wanted to be compensated for half of all those days.  Sounds fair, right?  Assets accumulated during the marriage should be characterized as marital property.  We can assign a value to each day based on John's wages.  What's the big deal?

John's position was that he couldn't just cash in half of his days and hand Mary a check.  His days rolled over from year to year and he woud only be paid on them if he stayed there to retirement or if he terminated his employment.  Between the time of the divorce and his retirement, he might need those days.  What if he got really sick and had to take off a lot of time?  What if he needed time away from work and needed to use the vacation days?  John argued that sick days and vacation days were really just a substitute for (non-marital) wages to be earned in the future.

The Illinois Supremes put the matter to rest, holding:

". . . the value of accrued vacation and sick days is speculative and uncertain until a party actually collects compensation for those days at retirement or termination of his employment.  A party cannot receive cash for those days prior to retirement or termination.  In fact, it is possible that in some cases, an employer might change its policy concerning the right to receive compensation for accrued sick days, limiting or eliminating that right entirely.  Similarly, in cases where provided for in a collective-bargaining agreement, an employer might change its policy concerning the right to receive compensation for accrued vacation days. See 820 ILCS 115/5 (West 2008).  Accordingly, we find that accrued vacation and sick days are not marital property subject to distribution in a dissolution of marriage action.

In so holding, we note that the facts of this case differ from the facts in Brotman v. Brotman, 528 So.2d 550 (Fla.App.1988), and Ryan v. Ryan, 261 N.J.Super. 689, 619 A.2d 692 (1992).  In those cases, the husbands received payment for accrued vacation days following separation but prior to dissolution of marriage. We agree that when a party has actually received payment for vacation and/or sick days accrued during marriage prior to a judgment for dissolution, the payment for those days is marital property subject to distribution in the marital estate.  Under that scenario, the vacation and/or sick days have been converted to cash, the value of which is definite and certain.  In this case, however, the accrued days have not been converted to cash, and the value of those days remains uncertain.

Abrell v. Abrell, 923 N.E.2d 791, 236 Ill.2d 249, 337 Ill.Dec. 940 (Ill., 2010)