Dissipation

updated 21 October 2021

by Wes Cowell

 

Dissipation occurs where one spouse destroys, wastes, or hides, property or money while the marriage is undergoing an "irretrievable breakdown."  Some spouses would rather spend or destroy assets than see their spouse get anything.  When dissipation occurs, the court has the power to set things right.  Need Advice?  Call, leave your info, or scheduleschedule a consultation.

 

Dissipation has been defined by the Illinois Supreme Court 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."  Marriage of O'Neill, 138 Ill.2d 487, 150 Ill.Dec. 607, 563 N.E.2d 494, (1990).

 

The Non-Marital "Donut Hole":  After the O'Neill case was decided, the law (750 ILCS 5/503(d)(2)) was amended to apply to non-marital property, as well.  Then, in 2016 the law was amended again to exclude dissipation of non-marital property.  So, when you're reading dissipation cases, understand that there is a donut hole where some cases may talk about dissipation of non-marital assets.  Today, that's not possible . . . one cannot dissipate non-marital assets -- dissipation applies only to marital assets.

 

Examples:  Classic examples of dissipation include:

  • buying gifts for a lover;

  • taking a vacation with a paramour;

  • renting hotel rooms for trysts with a boy/girlfriend;

  • gambling (the debts would likely be "dissipation," but any winnings would likely be "marital property" to be divided);

  • carelessly or intentionally causing the family business to fail;

  • leaving (farm) equipment out in the elements to rust away;

  • not tending to family photographs and heirlooms so that they are ruined;

  • failing ot pay the mortgage so a home is lost to foreclosure;

  • failing to pay taxes, and thereby incurring penalties and interest.

 

Starting When?:  Dissipation happens only when the marriage is undergoing its “irretrievable breakdown.”  How do you know if your marriage has reached that point?  Must the parties concur on the breakdown?  Is it enough if only one party declares the marriage over?  Can the behavior of just one spouse, without a declaration -- just thinking "that's it, this marriage is over!" be enough?  What if the behavior is the same kind of day-in-day-out unkind, antagonistic behavior that the other spouse has tolerated for years?  When does one truly know that the marriage has reached the point of no return?  

 

A split arose between the courts as to whether dissipation may exist during the breakdown of the marriage or only after the marriage had been irretrievably broken.  In other words, can dissipation occur from the very start of the breakdown, or does it occur only after the marriage has been fully broken?  If dissipation may occur during hte breakdown, when does the breakdown start?  One can imagine a fight between the new bride and groom at the reception following the exchange of vows -- is that the start of the breakdown?  The 2d Appellate District said "it depends," resolved the issue this way:  

 

"An irretrievable breakdown is not a ‘prolonged gradual process extending from the initial signs of trouble in a marriage until the actual breakdown itself.’  In re Marriage of Hazel, 219 Ill.App.3d 920, 921 [162 Ill.Dec. 451, 579 N.E.2d 1265] (5th Dist.1991).  Rather, the date of irretrievable breakdown is the date by which it is apparent that a breakdown is inevitable.  Id. at 922 [162 Ill.Dec. 451, 579 N.E.2d 1265].  Courts define the date of irretrievable breakdown in this way in order to avoid the overly burdensome task of ‘examin[ing] every argument or conflict in the marriage from the moment the vows are exchanged to the date of dissolution.’  Id. at 921–22 [162 Ill.Dec. 451, 579 N.E.2d 1265].  Cf. In re Marriage of Holthaus, 387 Ill.App.3d 367 [326 Ill.Dec. 138, 899 N.E.2d 355] (2nd Dist., 2008).

 

Another 2d District case, IRMO ROmano, also addressed the issue:   The parties married in September 2004. Petitioner filed her first petition for dissolution of marriage in 2013, which the court voluntarily dismissed in January 2014. In May 2014, the parties travelled to Turkey and Italy together. In June 2014, the parties bought a home. In December 2014, 2021 IL App (2d) 191129 the parties had a son. In 2014 and 2015, petitioner’s parents stayed in the parties’ home multiple times. In December 2015, petitioner filed the petition for dissolution of marriage at issue

In re Romano, 2012 IL App (2d) 91339, 968 N.E.2d 115, 360 Ill.Dec. 36 (Ill. App., 2012)  See, also, Marriage of Sinha, 2021 IL App (2d) 191129

Filing and Time Constraints:  The law (750 ILCS 5/503(d)(2)) was amended in 2013 to put up some time limits to prevent litigants from trying to reach back into the marriage and claim the "irretrievable breakdown" was inevitable when the couple left the altar.  Today, to claim dissipation, a party must file a notice with the court no later than 60 days before trial or 30 days after discovery closes, whichever is later; and the notice must 1) identify the date or time period during which the marriage began undergoing its irretrievable breakdown (that is, according to Romano, the date by which it was apparent that a breakdown was inevitable), 2) identify the property dissipated, and 3) identify the period of time during which the dissipation occurred.

 

It used to be that one could push the date of the start of irretrievable breakdown way, way back in time.  For example, if one spouse had maintained an affair for ten years, a dissipation claim might reach back a decade.  The law, today, however, limits dissipation claims to 5 years before the filing of the petition for dissolution or 3 years after the time the party claiming dissipation knew (or should have known) of the dissipation.  In other words:

 

  • if the innocent spouse DIDN'T KNOW of the dissipation, the dissipation claim may reach back 5 years prior to the filing of the petition;

  • if the innocent spouses DID KNOW (or should have known) of the dissipation, the claim must be raised within three years or it is waived.

 

Too many people stay in a marriage with full knowledge that their spouse is gambling away the money, or having an affair, or will soon drink them into poverty.  Under those circumstances, the victim is really not so innocent, and allowing a dissipation claim to reach far back in time would seem to work an injustice.  The guilty spouse would be punished for deeds that the innocent spouse had already been tolerated and condoned.

 

Burden of Proof:  Once a party properly raises a dissipation claim, the burden of proof shifts to the accused dissipator to demonstrate, by clear and convincing evidence, where the money was spent or where the property went.

 

Vague and general explanations (like, "I eat out a lot," "I spend the money on living expenses," and "that was just walking-around money") will result in a finding of dissipation.

 

Limited to "Waste:"  Not all expenditures constitute dissipation.  Where a spouse spends money to preserve the marital estate, dissipation cannot be found.  Ordinary living expenses cannot be dissipation.  "Legitimate, necessary, and appropriate expenditures that maintain the former lifestyle,likewise, cannot be said to be dissipation.  On the other hand, sometimes innocent expenditures are considered dissipation.  Where a spouse was duped by his financial advisor and made a terribly bad investment, the court found dissipation.  In re:  Marriage of Gurda, 304 Ill.App.3d 1019, 711 N.E.2d 339, 238 Ill. Dec. 236 (Ill. App. 1 Dist., 1999)

 

Personal Gain Not Elemental:  The dissipating party need not derive personal benefit from the dissipation in order to be held accountable.  In re Marriage of Petrovich, 154 Ill.App.3d 881, 107 Ill.Dec. 543, 507 N.E.2d 207, (2d Dist., 1987), citing In re Marriage of Smith, 128 Ill.App.3d 1017, 1019, 84 Ill.Dec. 242,471 N.E.2d 1008 (2d Dist.).  

 

Ordinary Living Expenses:  Expenditures for legitimate family expenses which are necessary and appropriate cannot be dissipation.  The rub, however, lies in that "legitimate . . . necessary and appropriate" language.  In one case, for example, a husband moved out of the marital home and set up his own place.  The court said ". . . the funds which respondent used to maintain and furnish the apartment in which he lived after he vacated the marital home, the funds which he used as "spending money" for unspecified purposes, and the funds which he used on the trips he took alone were obviously not spent for marital purposes.  As such, they should have been charged against his share of the marital property . . . ."  In re:  Marriage of Partyka, 158 Ill.App.3d 545, 511 N.E.2d 676, 110 Ill.Dec. 499 (1st Dist., 1987).

 

Church Donations:  Dissipation has been found where one spouse, over the objection of the other, tithes and contributes money to a church.  In re Marriage of Cerven, 317 Ill. App. 3d 895, 742 N.E.2d 343, 252 Ill.Dec. 93 (Ill. App., 2000).

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