The period during which a marriage is breaking down can be an extremely stressful and challenging time. Both spouses are often dealing with various emotional difficulties as they struggle to reach a decision regarding the future of the marriage. It is important, however, for each party to remember that the marriage has not ended until a divorce decree has been issued, and that inappropriate spending of marital or personal assets can greatly impact the divorce process. Such spending is known as dissipation under the law, and dissipation claims are taken very seriously by divorce and family courts.
Points of Interest in a Dissipation Claim
During a divorce proceeding, a spouse may pursue a dissipation claim if he or she believes the other spouse has spent or improperly used marital or non-marital assets, therefore affecting the equitable distribution of marital property and other considerations. Dissipation can occur in the form of frivolous personal purchases, gambling, gifts, and other ways of active spending. It may also include more indirect or passive activities such as failing to maintain property or allowing real estate to be foreclosed upon.
In making a dissipation claim, a spouse must offer several points of consideration to the court, including:
- The approximate date after which the marriage began its irreparable breakdown;
- The property that was dissipated; and
- The date or time period during which the dissipation occurred.
The court will consider not consider dissipation claims dating back longer than five years prior to filing for divorce. Similarly, a claim must be filed within three years of the claimant’s discovery of the alleged dissipation.
Defending a Dissipation Claim
When a spouse has been accused of dissipating property, defense options are fairly limited, but rather straightforward. While it may seem sufficient to show that the property in question was not marital property, personal assets can also be dissipated to reduce a spouse’s available resources. Although non-marital assets are not subject to equitable distribution, each spouse’s personal financial situation is taken into account during the allocation process. Personal property may also be dissipated in an effort to reduce resulting spousal maintenance or child support requirements.
The primary defense against a dissipation claim, therefore, is that the property was spent on marital interests. For example, a spouse who uses marital assets to eliminate marital debt, even without his or her partner’s knowledge, is not likely to be held responsible for dissipation. The accused spouse, however, must be prepared to clearly show how the property in question was used and how such use benefited the marital estate. A recent Illinois appellate court decision determined that vague or ambiguous testimony regarding marital assets being used for marital expenses is not sufficient.
Trusted Legal Advice
If you are considering divorce and are concerned that your spouse may be dissipating assets, contact an experienced family law attorney in Kane County. At Bochte, Kuzniar & Navigato, P.C., we have been helping clients protect their best interests for more than four decades and intimately understand the challenges inherent to any divorce. Schedule your free initial consultation by calling 630-377-7770 today and put our skilled professionals to work for you.