ARTICLES

Dissipation

Dissipation occurs when one spouse, essentially, wastes property or money.¹ The law applies to non-marital as well as marital property. Some spouses figure they'd rather spend the assets than let their spouse have a chance at getting a part of it. Classic examples include buying gifts for, or taking a vacation with, a lover during the divorce case. Dissipation claims are not limited to wasting money. Destroying and failing to maintain property also count as dissipation. Ruined photographs,² homes falling into foreclosures,³ and work tools that have been left out to rust have all been found to be dissipation by Illinois Courts. Even failing to pay taxes on time has led some courts to conclude that the money needed to pay off the resulting interest and penalties had been dissipated.⁴

When dissipation arises, the court may use the final property award to offset the amount (or some portion) against the spending / wasting spouse to compensate the wronged spouse. For example, if, shortly before your divorce your spouse closed an investment account (say, $15,000) and used the money to buy a car for a "friend," the court would likely conclude that the money had been dissipated. Your spouse would have to pay that amount back into the marital pie before it is divided. Pragmatically, the court merely applies an offset in the final property award. If you think your spouse dissipated assets, you should work closely with a knowledgeable attorney to properly plead and prosecute the issue – the wording of the papers filed during the progress of your case, and even the witnesses called to testify can make or break a dissipation claim.⁵

A claim of dissipation can also be used as a weapon in a settlement struggle. Some spouses — backed by unscrupulous attorneys – make baseless claims that assets have been "dissipated" when, in fact, they've merely been used in the ordinary course of day-to-day life. In one case a husband claimed that the wife was dissipating property by paying tithes and donations to her church.⁶ Ordinary, day-to-day living expenses have, in some cases, been found to constitute dissipation.⁷ Other cases, however, have concluded that ordinary living expenses may not constitute dissipation.⁸ You should work closely with a knowledgeable attorney familiar with current developments in Illinois divorce law to be sure of a successful claim or defense in a dissipation battle.

The unfairness of dissipation claims arises in the fact that, once a accusation of dissipation has been made, the burden of proof shifts to the accused to prove that the alleged dissipation did not occur. There are defenses against such unprincipled tactics, but to be effective they must be raised in the right way and at the right time – anything less may prove disastrous.⁹ If your attorney seems unprepared or doesn't take the threat seriously, contact another attorney immediately – every day counts when fighting a dissipation claim.

In one case, after the marriage had broken down, the husband moved out of the house and rented an apartment. The wife argued that all of the rent money he paid was being dissipated. She won.¹⁰ Other cases, though, have held that the expenditure of marital funds by one spouse for necessary, appropriate, and legitimate living expenses will not be counted as dissipation.¹¹ Be sure to work with an attorney who has the knowledge, experience, and ability to help guide you through these tricky waters.

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