When a marriage breaks down, one spouse may decide it is better to hide or spend–or even destroy–certain assets rather than risk the other spouse gaining control of the property in a divorce. Such thinking is not only short-sighted and foolish. It can also place the spouse who misused the asset in a weaker legal position before the divorce court.
What we are really talking about here is a legal concept known as “dissipation of marital assets.” The Illinois Supreme Court has defined dissipation as the use of marital property or assets for purposes outside of the marriage when the marriage is already breaking down. The Illinois legislature has also said that dissipation can involve non-marital property, as well.
What is the Time Limit to Bring a Dissipation Claim?
So, what exactly does it mean to use marital property “for a purpose unrelated to the marriage”? The most classic example is one spouse having an extramarital affair and buying gifts for their new lover. In other words, if your spouse uses money from your joint checking account to take an expensive vacation with another woman (or another man), that would clearly qualify as a dissipation of marital assets.
It is also important to note that dissipation only occurs once the marriage is “undergoing an irreconcilable breakdown.” So, if you and your spouse simply have an argument, and your spouse goes out and buys an expensive piece of jewelry without your consent, that probably would not count as dissipation.
In addition, the Illinois legislature has clarified some of the rules surrounding the timeline of dissipation claims. Under a 2013 legislative amendment, if a party wishes to make a dissipation claim during a divorce proceeding, they must first give notice no later than 60 days before the scheduled trial or 30 days after the close of pre-trial discovery, whichever is later. The notice itself must identify the “date or period of time” when the “irretrievable breakdown” of the marriage began, as well as specific property that was allegedly dissipated.
If the accusing spouse did not know–or could not reasonably have known–about the dissipation at the time it occurred, the claim must still be raised within five years. If the spouse was aware of the dissipation, this time period is shortened to just three years. To put this in practical terms, let us say James knew his wife Mary had a gambling problem dating back to the start of their marriage ten years ago. Under these circumstances, James could pursue a claim for dissipation of marital assets that occurred more than three years before he filed for divorce. However, if Mary only just learned James was spending money on an extramarital affair that started four years earlier, she could still pursue a dissipation claim because that falls within the five-year window.
Speak with an Illinois Divorce Lawyer Today
When a court does find there has been a disposition of marital assets, the judge can use that information when deciding a number of divorce-related issues, such as spousal maintenance and child support awards. If you suspect your estranged spouse has been recklessly destroying marital assets and you need legal advice on what steps you should take to protect your family, contact SAM LAW OFFICE LLC today to schedule an initial consultation with a qualified Illinois divorce attorney.