Dividing marital property during a divorce is not always as simple as deciding who gets what. Sometimes, dividing marital property is a matter of determining who spent what, and whether that spending constituted dissipation.
Dissipation occurs when a person wastes money or other property to prevent his or her spouse from getting those assets in a divorce proceeding. Specifically, Illinois law defines dissipation as a person’s use of marital property for his or her sole benefit for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown. This situation often arises when the person is having an affair and spends the assets on a girlfriend or boyfriend. Examples include buying gifts for and taking vacations with the significant other.
Here are six facts that divorcing couples need to understand about dissipation claims:
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A party pursuing a dissipation claim must file a notice of intent 60 days prior to trial or 30 days after the discovery period ends, whichever is later. The notice must specify what property was dissipated, when the dissipation occurred and when the marriage underwent an irreconcilable breakdown. A party that does not timely file a dissipation claim waives that right at trial.
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Dissipation cannot be claimed during a divorce proceeding if the alleged dissipation occurred more than five years prior to filing the petition for dissolution of marriage or three years after the party claiming dissipation knew or should have known about the incident.
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Once dissipation is claimed, the allegedly wasteful spouse has the burden of proving that the dissipation did not occur.
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Dissipation is not limited to spending money. It also includes destroying or failing to maintain property. For example, allowing the family home to fall into foreclosure so it will not be in play during a divorce settlement gives rise to a dissipation claim.
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If the dissipation claim is legitimate then the court might offset the wasted amount against the final property awarded to the wasting spouse. This is done to compensate the wronged spouse.
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A dissipation claim is baseless if it involves assets spent in the ordinary course of married life. For example, an Illinois appellate court determined that three vacations a husband took during his divorce proceedings (a trip with his children, a hunting trip and a trip to Las Vegas) were not dissipation because the trips were consistent with the lifestyle established during the marriage.
Contact one of our Schaumburg divorce attorneys at Glasgow & Olsson today if you have a dissipation claim against your spouse or if you are defending against a dissipation claim. We have experience handling both sides of the issue during divorce proceedings. We can assist those in the Chicago area. Call 847.577.8700 for a free consultation.