In Illinois, when a spouse spends money for non-marital purposes, it is called dissipation. Amounts dissipated are essentially put back into the marital pot to be divided. The timing of the spending, the status of the marriage at the time of the spending, the purpose of the spending, and the amount of the spending are all relevant to help a court determine whether certain expenses should be considered dissipation.
My spouse, shortly after I filed suit for divorce, moved out of our house and he took his girlfriend on a two week vacation to Hawaii. He charged the travel, room, food, gifts for the girlfriend etc. to his credit card and paid off the credit card with a bonus he received. Am I entitled to recover any of this money?
Yes. Everything that is acquired during the marriage (except for gifts or inheritance) belongs to the marriage, including the husband’s bonus. Think of it all as going into the marital pot, and the divorce court divides the marital pot between the spouses.
The legal term for the husband spending money on the vacation is dissipation. The definition of dissipation is the use of marital property-funds for a spouse’s own benefit, or for a purpose unrelated to the marriage after the marriage began undergoing an irretrievable breakdown. See the Gitlin Law Firm’s article regarding the timing of dissipation as well as the three year and the five year cut-off time periods prior to a divorce.
What does it take to prove that there was an irretrievable breakdown of the marriage at the time my spouse dissipated the funds?
The filing of a suit for divorce is, of course, very obvious evidence of a breakdown of the marriage. A spouse moving out of the marital residence because of marital discord would be evidence of an irretrievable breakdown of the marriage.
In one case the trial court held that when the wife stopped cooking for the husband there was such a breakdown, but the appellate court disagreed and ruled that the irretrievable breakdown did not occur until the time when the wife filed for divorce.
In another case the court relied on the testimony of mental health specialists who testified regarding the breakdown of the marriage.
There was also a case holding that there was no breakdown in the marriage because the parties continued to engage in sexual relations, and the breakdown did not happen until the wife filed her petition for divorce.
What is often helpful is a milestone so that the court can definitely say that from a certain date forward a certain threshold had been met indicating that the marriage then began undergoing its irreconcilable breakdown.
The 3 and 5-Year Rule: My spouse has been losing money gambling for almost the entire fourteen year marriage. Isn’t that dissipation?
No. Illinois law provides that:
no dissipation shall be deemed to have occurred prior to 3 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.
My husband moved out, stopped paying mortgage and the house was foreclosed.
I have three children, all under ten, and I am not employed outside of the home. My husband is employed. 18 months ago, he moved out of the house and stopped making the mortgage payments, although he was able to do so, and the house was lost in foreclosure proceedings. Is this dissipation?
Yes. The fact that there were irreconcilable differences in the marriage was established when the husband moved out. Since he had the funds with which to pay the mortgage, but did not, and the house was lost as a result, the court can find the loss of equity in the house to be dissipation. (The “equity” in a house is the difference between its fair market value and the mortgage.) Also the claims meets the text that it happened within three years after you knew or should have known about it.
What are other illustrations of dissipation?
The appellate courts have found the following to be dissipation:
- Withdrawal of a substantial amount of money from a marital account and using the money to pay child support to a former wife.
- Setting up an educational trust for the children shortly before the divorce proceedings were filed.
- The mother taking a European vacation with the parties’ minor son against the wishes of the father.
On the other hand, no dissipation was found in these cases:
- Husband’s payment of wages to employees when the evidence did not show that the wages were too high.
- The father taking a vacation trip with the children, but doing so was merely maintaining the lifestyle the parties enjoyed during the marriage.
How can a person charged with dissipation of marital funds defend himself?
Once the other side has proved the expenditures were made at a time when the marriage was undergoing an irretrievable breakdown [provided the three year and the five year tests are met], the party charged with dissipation must establish by clear and specific evidence how the funds were spent. General and vague testimony that the funds were spent on marital purposes, or bills, is inadequate to avoid a finding of dissipation.
What’s this that I hear about a “notice of intent to claim dissipation?” How does that work?
- A notice of intent to claim dissipation must generally be made not later than 60 days before trial or 30 days after discovery closes, whichever is later.
- The notice must minimally contain a date or period of time during which the marriage began undergoing an irretrievable breakdown, an identification of the property dissipated, and a date or period of time during which the dissipation occurred.
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A certificate or service of the notice of intent to claim dissipation is to be filed with the clerk of the court.
Updated: 03/22/2018
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