Dissipation and Your Divorce: What You Need to Know

 

Divorce is nearly always a highly emotional and stressful process. If you find out that your former partner has been hiding or spending marital assets, it adds a layer of hurt – and, potentially, significant financial hardship. When it comes to dissipation, do you have recourse in court?

 

Let’s look at an example to put this issue in context: a couple is divorcing, and the wife discovers that her husband has been spending money for gifts or trips with his new girlfriend. This is dissipation, as defined under the law. Per the Illinois Supreme Court, dissipation is 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.” * Note: the Court later amended this to include non-marital property as well.

 

In our example, the husband is certainly using these assets for a purpose unrelated to the marriage. But what is “irretrievable breakdown”? This is the time at which the breakdown of a marriage is inevitable. It’s not a fight or a conflict. It’s not a gradual eroding of trust or intimacy. Rather, it is the point at which the marriage is, for all intents and purposes, “over.”

 

Dissipation applies to assets other than money. It could be, for example, that one spouse failed to pay the mortgage and the home went into foreclosure or that he or she did not pay taxes. Even destroying photographs may qualify as dissipation.

 

The law does impose some restrictions on dissipation claims:

 

  • The “innocent” spouse must file a formal notice, called “Notice of Intent to Claim Dissipation,” with the court. He or she must also send a copy to the other party.
  • This notice must be filed no later than 60 days before the trial or 30 days after discovery closes, whichever is later. If this deadline is missed, the spouse by default waives the right to make the claim.
  • The notice has to include specifics: dates of the “irretrievable breakdown,” a list of assets allegedly dissipated, and dates of dissipation.
  • If the “innocent” spouse was aware of the dissipation more than three years ago, it is not actionable. For example, if Spouse A discovered that Spouse B was carrying on an extramarital affair and spending money on this person more than three years ago, the judge considers it irrelevant.
  • If dissipation occurred more than five years ago, it cannot be claimed.
  • The aggrieved spouse cannot claim dissipation for assets spent while they were “happily married” – that is, prior to the “irretrievable breakdown.”

 

Dissipation can be a complicated issue, and it is certainly an emotionally fraught one. Contact Kiswani Law to discuss your case and your options.