Dissipation of Marital Assets: Knowing When Your Marriage is Breaking Down

 Posted on May 25, 2018 in Distribution of Assets

When a couple is getting divorced in Illinois, the law provides that all of the couple’s marital property should be divided in a manner that is fair and just. To determine a “fair and just” allocation of assets, the court will take many factors into account, including each spouse’s age, health, and employability, as well as their contributions to the marital estate. The court must also consider any claims made by either spouse against the other regarding dissipation of marital assets.

What Is Dissipation?

The Illinois Supreme Court established a definition for dissipation as “the use of marital property for the sole benefit of one of the spouses for a purpose unrelated to the marriage at a time that the marriage is undergoing an irretrievable breakdown.” Over the years, the state legislature has alternated between including and excluding non-marital property in its definition of dissipation. The most recent version of the law provides that only marital property can be dissipated.

The definition of dissipation includes several important elements. First, in order for behavior to be considered dissipation, a person must be using marital assets for something out of the ordinary and not related to the marriage. Technically, buying fast food on the way home from work one day could be construed as buying something “for the sole benefit of one of the spouses,” but that is not what the court is looking for in a dissipation claim. On the other hand, a lavish trip to Las Vegas for just one spouse—complete with thousands of dollars spent on gambling—could be considered dissipation. One of the most common types of dissipation involves money spent by one spouse to facilitate an extramarital affair.

“Irretrievable Breakdown”

The other primary element of a dissipation claim is the timing. The Supreme Court’s definition says that the spending must have taken place while the marriage was irretrievably breaking down, but what does this mean? An Illinois appeals court answer this question in 2012 by saying, “The date of irretrievable breakdown is the date by which it is apparent that a breakdown is inevitable.” While this is still somewhat subjective, it prevents the court from having to analyze every argument a couple ever had during their marriage.

The Illinois Marriage and Dissolution of Marriage Act provides additional guidance on dissipation claims. It provides that a spouse who knew or should have known of the other’s spending must bring up the issue within three years. The law also says that no claim of dissipation can look back further than five years prior to filing for divorce. This means that you cannot claim that your marriage has been broken for ten years and seek dissipation considerations for money that was spent a decade ago.

Call Us for Help

If you are considering a divorce and you believe that your spouse has been wasting your marital assets, contact an experienced Lombard family law attorney. Call 630-426-0196 for a confidential consultation at A. Traub & Associates today.

Sources:

https://public.fastcase.com/ppbqSQpNDaJE%2F8PlIk0b8Lg%2FdybIR4Vkd7c9%2B8gl2VQ%3D

http://www.ilga.gov/legislation/ilcs/ilcs5.asp?ActID=2086&ChapterID=59