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.
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). 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. That's important, because non-marital property can be considered when the court divides the marital property and considers maintenance awards and even in child support calculations.
Classic examples of dissipation include buying gifts for, or taking a vacation with, a lover during the divorce. Dissipation happens only when the marriage is undergoing its “irretrievable breakdown.” So, 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, be enough? What if the behavior is the same kind of day-in-day-out 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. In other words, does dissipation exist from the time the marriage began to break down, or does it occur only once the marriage has been fully broken? The 2d Appellate District 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).
In re Romano, 2012 IL App (2d) 91339, 968 N.E.2d 115, 360 Ill.Dec. 36 (Ill. App., 2012)
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 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 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.
Sufficient 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.
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.).
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)
Types of Assets Wasted: Dissipation claims are not limited to wasting money. Destroying and failing to maintain property also count as dissipation. Ruined photographs, homes falling into foreclosure, failing to pay taxes and thereby incurring penalties and interest, have all been found to be dissipation by Illinois Courts.
Ordinary Living Expenses: Expenditures for legitimate family expenses which are necessary and appropriate cannot be dissiptation. 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 ojection 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).