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Dissipation May Create Serious Problems During Divorce

dissipation, Illinois divorce attorneysWhen a marriage is ending, it is not uncommon for one spouse to behave in ways that are detrimental to his or her soon-to-be ex, especially if there is a potential new partner in the picture. One of the most common ways is through the dissipation of marital assets. In extreme cases, this can be a crime, but most of the time, dissipation results in the offending spouse receiving fewer assets. If you fear this is happening to you, you may have the ability to prove it and benefit appropriately.

Illinois Case Law

Throughout the years, Illinois courts have defined dissipation as the “use of marital property for the sole benefit of one of the spouses for a purpose unrelated to the marriage” during the time when the marriage is irretrievably breaking down. The key word is “irretrievably.” In In re Marriage of O’Neill, the court held that alleged dissipation can only be looked into for the period where the marriage was breaking down. Thus, if your spouse, for example, began to use marital money to buy gifts for a mistress from the beginning of your marriage, you likely will not be able to claim the value of those lost assets unless you can show that your marriage was breaking down from the very beginning.

Illinois courts have also held that it is possible to determine the point at which a marital breakdown becomes inevitable. It is at that point where one can begin to claim dissipation. The rationale is that without establishing a specific point, a court would have to sift through the couple’s entire marriage for every real and perceived wasteful expenditure—an undertaking which would be grossly inefficient. Illinois now statutorily limits the finding of the breakdown point to no earlier than 5 years before the filing of the divorce petition.

Specifics to Remember

While being accused of dissipation may trigger an understandable defensive reaction, it can be infinitely more productive to use the law to your advantage. There are a number of little details in case law that can be put to work for you. For example, the law holds that if you intend to claim dissipation, or your spouse does, a notice to that effect must be filed with the court no later than 60 days before trial or 30 days after the close of discovery, whichever is later. That is a finite window, and if you miss it (or your spouse does), there is no recourse.

Another important detail to remember is that the burden of proof in a dissipation claim is not on the party alleging dissipation, but on the party being accused. In other words, if your spouse claims you dissipated assets, you must prove that you have not engaged in dissipation. The standard of proof, however, is relatively low, as established by court precedents. You do not need to account for every single dollar to avoid a finding of dissipation. If your spending is within the pattern or habits you displayed during your marriage, or you can show that the money was spent for the benefit of the marriage—paying off a debt, for example—a finding of dissipation is unlikely.

Ask a Divorce Attorney

Sometimes, spouses have valid dissipation claims while in other cases, a spouse may bring a dissipation claim simply to cause trouble. Regardless of which you may be facing, a dedicated St. Charles divorce attorney can help. Call Bochte, Kuzniar & Navigato, P.C. at 630-377-7770 for a free, confidential consultation today.



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