Dissipation

Dissipation

Often times clients ask if they can get money back that they feel their spouse has spent on an inappropriate purpose. In Illinois, this legal concept is called “dissipation.”

Dissipation is defined as the "use of marital property for the sole benefit of one of the spouses for a purpose unrelated to the marriage at a time that the marriage is undergoing an irretrievable breakdown." In order to qualify as dissipation, the inappropriate spending must meet the following criteria:

 

  • Use of Marital Property: The money being spent or the property being disposed of must be “marital.” Marital property is all property and income that is acquired during the marriage except for property that is acquired by gift, inheritance or in exchange for non-marital property. Even if you file for divorce, you are technically still married, so income you earn before the divorce is final is still classified as marital property. Generally, parties have complete freedom to use or dispose of their non-marital property in any way they wish.
  • For the Sole Benefit of One of the Spouses For a Purpose Unrelated to the Marriage: Typical examples include money spent on paramours, gambling, or illegal drugs. Other types of expenditures may or may not be dissipation, depending on the specific circumstances. For example, dues paid to belong to a golf club, although it may only benefit one spouse, may not be dissipation if it was an expense that existed prior to the breakdown the marriage. However, other expenditures, even though they may be for a marital purpose, may be considered dissipation if they are unnecessary, wasteful, or excessive given the parties’ income. For example, retiring early without medical necessity can be considered dissipation. The court would look to the specific facts in each individual case.
  • At a time that the marriage is undergoing an irretrievable breakdown: An irretrievable breakdown of the marriage is defined as the time at which the marriage is permanently broken. It is fact specific to each individual case. However, the time period during which you can claim dissipation is also limited by Illinois law. Dissipation can only be claimed for expenses which occurred prior to (3) years after the party claiming dissipation knew or should have known of the dissipation, but in no circumstances prior to (5) years before the filing of the petition for dissolution of marriage.

 

In order to make a proper claim for dissipation, your lawyer must file a Notice of Intent to Claim Dissipation with the court. The Notice must contain, at a minimum, the following:

 

  • 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

 

There is typically a spreadsheet attached to the Notice laying out this required information in an orderly fashion.

 

Once a proper Notice of Intent to Claim Dissipation has been filed, the spouse charged with the dissipation claim must show how and why the funds were spent with clear and specific evidence. When defending a claim for dissipation, the more specific the better. Evidence can include receipts, bills, and testimony. A judge will then determine whether or not to charge a spouse with the dissipation by examining the evidence and weighing the credibility of the spouse accused of dissipating marital monies.

 

If you are able to prove dissipation, then the marital estate is entitled to be reimbursed the dissipated funds. This does not mean that you personally get a dollar for dollar reimbursement. For example, if you can prove your spouse dissipated $100, and your marital estate is being divided 50/50, then you are entitled to an extra $50 from your spouse’s share of the marital estate. As your spouse was entitled to $50, it is considered an advance from his/her share of the marital estate. Proving dissipation can be a time-consuming, difficult, and expensive process. It is important that you do a cost/benefit analysis with your attorney to determine if filing a claim for dissipation is worthwhile.

 

© 2020 Jennifer S. Tier for Feinberg Sharma, P.C.