The Importance of Timing for a Claim of Dissipation

 Posted on October 23,2018 in Divorce

In any proceeding for divorce, the spouses must reach an agreement regarding the division of their marital property. If they cannot, the court will equitably allocate the marital estate between the spouses, taking a number of statutory factors into account. During the process, either spouse may file a claim of dissipation, alleging that the other party has spent or “dissipated” marital assets inappropriately, and that the dissipated money should be repaid to the marital estate before proper allocation can be completed. When the spending occurred, however, is an important consideration, and one that may impact the court’s ultimate decision regarding the claim.

What Is Dissipation?

Under Illinois law, dissipation is a spouse’s use of marital for his or her own personal benefit and not for the benefit of the marriage. Dissipation is often alleged in cases where one party has spent a great deal of money on drugs, alcohol, gambling, bad investments, or extramarital affairs. In some cases, dissipation can also include the destruction of or failure to maintain an asset. Such actions are problematic because inappropriate spending or destruction can significantly reduce the value of the marital estate.

Dissipation Timing

If your spouse has never been very good with money, it is easy to think that years of apparently wasteful spending may constitute dissipation. In Illinois, however, both statutory law and court precedents have established that the inappropriate use of assets is only considered dissipation if it occurs while “the marriage was undergoing an irreconcilable breakdown.” While such a determination may seem subjective at best, it is intended to prevent the need for a full accounting of expenditures throughout the entire course of a marriage which may have lasted for decades. The law also provides that dissipation claims are limited to actions or spending that occurred within five years of the filing of the petition for divorce.

Making Your Claim

To be considered in your divorce, a claim of dissipation must contain several specific elements, including:

• The specific property or amount you believe was dissipated;
• The date or period during which your marriage began irretrievably breaking down; and
• The date or period during which the alleged dissipation occurred.

Once your claim has been properly filed, the burden of proof shifts to the other party. He or she will be required to show that the spending or actions in question were intended for the benefit of the marriage. Alternatively, he or she may dispute your claim that the marriage had begun to break down at the time the spending took place.

Guidance From a Professional

Claims of dissipation can be complex, but they are an important part of the divorce process for many couples. If you would like to learn more about the possibility of claiming dissipation, contact an experienced DuPage County family law attorney. We can help you analyze your situation and provide the assistance you need every step of the way. Call 630-871-1002 today for a free consultation with Andrew Cores Family Law Group.

Sources:

http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=075000050HPt%2E+V&ActID=2086&ChapterID=0&SeqStart=6100000&SeqEnd=8350000

https://www.courtlistener.com/opinion/2167806/in-re-marriage-of-oneill/