Dissipation During Illinois Divorce Proceedings

 Posted on April 08, 2014 in Divorce

Divorce in Illinois is governed by the Illinois Marriage and Dissolution of Marriage Act (IMDMA), which includes provisions for a concept called dissipation. Dissipation is the improper use of marital funds and assets by one spouse for their own personal expenses unrelated to the marriage. Examples of dissipation include a spouse spending the couple's money on a personal vacation or on gifts for a friend with whom he/she is romantically involved. Expending marital assets for expenses related to the children or general reasonable living expenses for the couple such as groceries or home repair are not generally considered dissipation.

Dissipation Affects the Division of Assets

In Illinois, marital property is valued and divided in a divorce proceeding, and dissipation affects that distribution. The amount of marital property awarded to one spouse will be reduced by the amount that the other spouse spent improperly for non-marital purposes after the date that the marriage irretrievably broke down.

The spouse dissipating assets may be ordered by the Court to repay the value to the marital estate. Courts will not only look toward the timing of the expenditure, but will look at the purpose of the expenditure, how much was spent relative to that purpose, and whether the other spouse knew of and possibly consented to the expenditure. If this becomes an issue during a divorce, each spouse must be able to specifically substantiate the reason for a purchase, and may not use general labels such as "living expenses" to describe expenditures, but rather must specifically cite a reason for the expense in order to survive the Court's scrutiny.

Dissipation in Illinois only occurs when the marriage is in the process of an irretrievable breakdown, or after it has suffered that breakdown. Any expenditures made prior to that point in time will not be deemed to be in the nature of dissipation regardless of the purpose of the expenditures.

When is There an Irretrievable Breakdown?

Determining a date of irretrievable breakdown is a fact for trial courts to determine on a case-by-case basis. Illinois courts will typically look to evidence of the time at which at least one spouse no longer wished to be married or where marital problems had resulted in irreversibly damage to the marriage. This does not necessarily occur on the date a divorce petition is filed, or on the date one spouse moves away from the other, although if the couple lived "separate and apart" for a period of time, this may play a significant factor in the determination.

One of the other factors that the Court must consider when determining if dissipation has occurred is the timing of the alleged dissipation. Pursuant to Illinois law, no dissipation shall be deemed to have occurred prior to 5 years before the filing for divorce or for a period of 3 years after the party claiming dissipation knew or should have known of the dissipation.

Important procedural rules apply in order for a party to be successful in a claim for dissipation in divorce. A spouse seeking reimbursement must file a notice of intent to file a dissipation claim either no later than 60 days prior to trial or 30 days after the close of pretrial discovery, whichever occurs later. Both this notice provision and the 5-3 Rule are recent additions to the law. It is important to understand how the laws operate and to be on top of situations in which they may change. Currently, Illinois is considering a major change in the laws that govern divorce proceedings. The bill, HB1452, is still in committee and will be revisited by the Judiciary Committee on April 17, 2014.

Contact an Attorney Today

If you are considering a divorce and are interested in knowing how the dissipation law applies to your case, contact Kathryn L. Harry & Associates, P.C. at 630-472-9700 for a free consultation. We have offices in Oak Brook, and Naperville, Illinois and represent individuals in the surrounding areas, and we can help you with all family law-related issues. Call us today.