The Dissipation of a Marital Estate in Illinois Divorce
Someone contemplating divorce is likely to hear this piece of advice from friends and family: “Before you file, make sure you start putting money away in a separate account for yourself. You do not want to be left with nothing.”
Although well-meaning, this is actually bad advice. Illinois prohibits intentional dissipation of a marital estate, and doing so could result in you receiving less when the marital estate is divided.
Use of Marital Funds during Palatine Divorce
Illinois is an equitable distribution state—marital assets are divided in a fair and equitable manner. While a 50-50 split is presumed to be the most equitable division, equitable does not always mean equal. A number of different factors go in to the Court’s determination of what constitutes an equitable distribution, and any one factor can tip the property division into an unequal division of a marital estate
One such factor includes whether or not either party dissipated the marital estate. Dissipation of a marital estate is the intentional misuse, waste, destruction or depletion of marital assets. However, not every expenditure of a marital estate can cause dissipation. Generally, marital assets are considered to have been dissipated if they are spent solely for the expense of one party and are beyond the normal types of expenditures a couple makes during a marriage. For example, continued payment of a mortgage and repairs to a family home would not be a dissipation of marital assets; however, the purchase of a 30-foot yacht may very well be.
Other actions that may be considered dissipation of marital assets include:
- Using marital assets to support an extramarital affair (i.e., trips, gifts, or hotel rooms);
- Putting money from the joint checking account into a separate account;
- Destroying property, such as wrecking a car or setting a home on fire; or
- Purchasing extravagant items beyond what is needed for normal, everyday living.
Illinois law requires a spouse who believes marital assets have been dissipated to submit a notice of intent to claim dissipation. The notice must be filed at least 60 days before trial or 30 days after the close of discovery, whichever is later. One can only claim dissipation of assets beginning from the time when his or her marriage “began undergoing an irretrievable breakdown." Assets can only be recovered as far back as five years from the date the divorce papers were filed, or three years after the spouse claiming dissipation knew, or should have known, of the dissipation.
If the Court finds that one spouse has intentionally dissipated marital assets, he or she can order an uneven distribution of the remaining marital estate to make up for the lost assets (assuming it was not just hidden cash he or she can order be put back in the marital accounts). If a husband spent $50,000 wining and dining a mistress, his wife would receive $25,000 more in the property division, which represents her one-half share (assuming a 50-50 split) of the $50,000 the husband wrongly used. If the value of the remaining marital estate is insufficient to cover the dissipated funds, the Court can order the husband’s separate property be used to cover the debt.
Palatine Divorce Attorney
If you believe your spouse has dissipated marital assets, skilled Palatine divorce attorney Nicholas W. Richardson can help. Drawing on more than 10 years of experience handling divorce and division of property issues, Nicholas W. Richardson will help you get the fair and equitable division of property you are entitled to receive. Call today to schedule a free initial consultation.