When allocating spouses’ property under 750 ILCS 5/503 of the Illinois Marriage and Dissolution of Marriage Act (“IMDMA”), Courts are to assess whether a spouse engaged in the dissipation of marital assets. While marital misconduct, such as adultery or mental cruelty, are not a basis to affect the allocation of marital property, dissipation is relevant and the spouse engaging in the dissipation could receive a lesser share of the marital estate.
Dissipation occurs when one spouse uses marital property, for a use unrelated to the marriage, during a time in which the marriage is irretrievably broken.
When analyzing whether dissipation occurred in a particular case, this definition should be broken down in to subparts.
Was this property marital? Spouses are free to spend their non-marital property as they see fit. Even if the spending or use of the property is irresponsible, it is not within the province of the Courts to decide how a particular spouse should use their sole and separate assets.
Was the use unrelated to the marriage? It is imperative to determine whether both spouses in some manner benefited from the use of property. The use of marital property is considered dissipation if only one spouse received a quantifiable benefit.
Was the marriage broken when the dissipation occurred? Marriages do not break at a precise moment. They deteriorate over time. Spouses can quibble about particularly when they felt the marriage become irreconcilable.
Common examples of dissipation include gambling, spending on a paramour, excessive use of resources on one spouse’s hobby, or hyper luxurious travel. Whether you are alleging or defending a dissipation claim, it is necessary to go through the exercise of answering each of these questions. For example, if a spouse is gambling, it is necessary to determine the following: Were they gambling marital funds or their own sole and separate property? Did they engage in the gambling alone or did their spouse accompany them on recreational trips to gaming facilities? When the gambling occurred, were both parties disengaged from the marriage or simply having a quarrel? Did both the spouses gamble and therefore have “unclean hands”?
In addition to the three factors above, there are time constraints on when a dissipation claim can be considered valid. According to the IMDMA, “no dissipation shall be deemed to have occurred prior to (3) three years after the party claiming dissipation knew or should have known of the dissipation, but in no event prior to 5 years before the filing of the petition for dissolution of marriage”. If a party is seeking to make a dissipation claim they must make a valid assertion, within the requisite period of time, and follow the proper protocol.
If a party is going to assert dissipation in a dissipation proceeding, they must provide formal written notice. There is no dissipation by surprise at trial. The written notice does not need to precisely set out the various allegations, however, at minimum it must provide the date that the marriage began undergoing an irretrievable breakdown, state what type of property was dissipated, and when the dissipation occurred.
The party serving the notice must file a copy of the Certificate of Service with the Clerk’s office and the actual notice must be given to the opposing party no later than sixty (60) days prior to trial or (30) days after the close of discovery – whichever is later.
Once a Notice of Intent to Claim Dissipation is served, the burden shifts on the recipient to justify the spending. The recipient must demonstrate by clear and convincing evidence that the spending was not dissipation. Simply stating that the funds were used for a marital purpose or to pay bills was deemed to be insufficient. Clear and convincing is more than a preponderance of the evidence but less than beyond a reasonable doubt. Nevertheless, it is a high threshold to meet.
Finding of Dissipation
If a Court determines that dissipation did in fact occur, then the spouse at fault must reimburse the marital estate. It is not a simple determination of providing the other spouse with half the dissipation amount; rather the Court then determines the proper allocation of assets according to what is fair and equitable in light of the circumstances.
 In re Marriage of Smith (1984), 128 Ill.App.3d 1017, 1019, 84 Ill.Dec. 242, 471 N.E.2d 1008
The author is licensed to practice law in Illinois. This article is for legal information only and should not be interpreted as legal advice. You should consult with an attorney before relying on any information presented on this website. No attorney/client relationship is formed through communications via this website or based on this article.
Marie Sarantakis is the Principal Attorney of Sarantakis Law Group, Ltd. Ms. Sarantakis concentrates her practice in family law. In addition to her work in the courtroom, she is versed in alternative methods of dispute resolution as a mediator and Fellow of the Collaborative Law Institute of Illinois. She was recently recognized by Super Lawyers as a Rising Star, named as one of the Top 10 Family Law Attorneys Under 40 in Illinois by the National Academy of Family Law Attorneys, and featured as a Fellow of the National Association of Distinguished Counsel.
Ms. Sarantakis is active in the legal community and serves as Chair of the American Bar Association Young Lawyers Division Children & the Law Committee, an elected Assembly member and Young Lawyers Division Member of the Illinois State Bar Association, and on the Board of Governors of the West Suburban Bar Association. She also serves as a Young Professionals Board Member of Illinois Legal Aid Online and as an Associate Board Member of the Lawyers Assistance Program of Illinois.
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