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Understanding a Dissipation of Assets Claim

Posted on in Division of Assets

Naperville family law attorneyWhen you are in the middle of a divorce, property division can always become an issue regardless of how amicable the proceedings have been to that point. Both spouses in a marriage deserve their fair share of the marital assets - though “fair” does not always mean “equal” - but it is not uncommon for one spouse to waste or lose marital assets through profligacy. Known as dissipation, this behavior can have consequences to both spouses. It is generally a good idea to know what dissipation looks like, so you may be able to call it out if necessary.

Legal Definitions

Illinois has actually been one of the leading states in defining what exactly constitutes dissipation, and what the criteria to establish such a thing should be. As far back as 1990, Illinois had a working definition of dissipation from the case of In Re Marriage of O’Neill. Dissipation is not simply waste; it is defined as “the use of marital property by one spouse, for their benefit, for a purpose completely unrelated to the marriage, at a time when the marriage is undergoing an irreversible breakdown.”

There is a lot to parse there, and there have been numerous court cases which have helped clarify exactly what the definition means. The most important thing is that waste or dissipation encompasses more than conduct of which the other spouse disapproves. There must be actual, intentional misconduct in the spouse’s actions, and they must occur at a certain time in the marriage. If there is, your spouse is guilty of dissipation and you may have a right to recoup all or part of the property wasted.

To constitute dissipation, each of the following factors must be present:

  • Significant spending or giving of marital property that is out of the ordinary;
  • At a time when the marriage is at or has passed an irretrievable breakdown; and
  • With the deliberate intention to ensure the marital property does not end up in the hands of the other spouse.

Bringing a Claim to Court

If you believe your spouse has dissipated marital property, you must advise him or her that you plan to bring a dissipation claim during your divorce proceedings. It is important to keep in mind that this provision of the Illinois Marriage and Dissolution of Marriage Act codifies a time frame for dissipation claims. It states that “no dissipation shall be deemed to have occurred prior to three years after the party claiming dissipation knew or should have known of the dissipation, but in no event prior to five years before the filing for dissolution of marriage.”

In other words, under the law, there is a finite period with which you may allege dissipation occurred and still be able to do anything about it. If your husband spent $50,000 on a mistress six years before you filed, or three years after you found out about his extramarital affair and spending, you may not attempt to recoup that money. If you had filed a claim in court as soon as possible after you discovered the spending initially, recourse may have been possible. By your lack of action, you are held to have condoned your spouse’s spending.

You should also be aware that if you do bring a dissipation claim, your spouse does not have to account for every single dollar spent, according to In Re Marriage of Berberet, decided in 2012. He or she must be able to produce records adequately explaining any spending, but “adequate explanation” was held in Berberet that a dollar-for-dollar accounting was not necessary.

Experienced Representation Matters

Property division and dissipation can be extraordinarily complex areas of the law, and a qualified lawyer can make all the difference. Contact a skilled DuPage County divorce attorney to discuss your situation and to explore your available options. Call 630-352-2240 for a confidential consultation at Pesce Law Group, P.C. today.

Sources:

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

http://www.ilga.gov/legislation/ilcs/documents/075000050k503.htm

http://www.illinoiscourts.gov/opinions/AppellateCourt/2012/4thDistrict/4110749.pdf

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