Going through a divorce is challenging enough without worrying about whether your spouse has been wasting marital assets. If you suspect your soon-to-be-ex has been deliberately spending money to reduce your share of the marital estate, you might have grounds for what Illinois law calls a "dissipation claim." Let's break down what this means, how it works, and what you need to prove to successfully make such a claim. 

What Exactly Is Dissipation in Illinois Divorce Law? 

In simple terms, dissipation occurs when one spouse uses marital property for something that has nothing to do with the marriage while the marriage is undergoing an "irretrievable breakdown." Think of it as your spouse taking money that belongs to both of you and spending it on things that don't benefit your marriage when your relationship is already on the rocks. 

The classic example is a husband who spends thousands of dollars on gifts, travel, and entertainment for a girlfriend while still married. But dissipation can take many forms—gambling losses, unnecessary business expenditures, deliberately selling assets below market value, or even "losing" valuable items. 

Illinois courts have consistently defined dissipation 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 when the marriage is undergoing an irretrievable breakdown." 

When Does Dissipation Begin? 

An important element in Illinois dissipation claims is timing. Dissipation can only occur after the marriage has begun experiencing an "irretrievable breakdown." This doesn't necessarily mean when someone files for divorce—it refers to when the marriage began to fall apart. 

For example, if a couple stopped living as husband and wife in January, but didn't file for divorce until July, the court might consider January as the starting point for potential dissipation claims. This can be somewhat subjective and is often contested. Some courts might look for evidence like when the parties separated, when one spouse moved out, or when one spouse announced their intention to divorce. 

The Essential Elements of a Dissipation Claim 

To successfully prove dissipation in Illinois, you generally need to establish three key elements: 

The Burden of Proof in Dissipation Claims 

Here's where things get interesting in Illinois. The burden of proof in dissipation claims shifts between the parties: 

Initially, the spouse alleging dissipation (let's call them the "claiming spouse") must make a preliminary showing that: 

If the claiming spouse meets this initial burden—which isn't particularly high—the burden then shifts to the spouse accused of dissipation. This is where things get tough for the accused spouse. 

The accused spouse must then prove, by clear and specific evidence, what happened to the assets in question. Vague explanations won't cut it. Illinois courts require "clear and specific" evidence accounting for the funds. If the accused spouse can't adequately explain where the money went or prove it was used for legitimate marital purposes, the court will likely find dissipation occurred. 

Common Defenses to Dissipation Claims 

If you're facing a dissipation claim, several defenses might be available: 

However, these defenses require specific, detailed evidence. Simply saying "she knew I gambled" or "we always spent money this way" isn't enough without supporting documentation. 

Practical Examples of Dissipation 

To put this in perspective, here are some common scenarios Illinois courts have recognized as dissipation: 

Time Limitations on Dissipation Claims 

It's important to note that Illinois has specific time limitations for dissipation claims. According to Illinois law, a party must file a notice of intent to claim dissipation no later than 60 days before trial or 30 days after discovery closes, whichever is later. Additionally, no dissipation claim can go back further than 5 years before the filing of the divorce petition or 3 years after the party claiming dissipation knew or should have known of the dissipation. 

These time limitations are strictly enforced, so if you suspect dissipation, it's crucial to address it promptly with your attorney. 

How Courts Address Proven Dissipation 

If dissipation is proven, Illinois courts typically address it in one of two ways: 

Remember that Illinois follows "equitable distribution" principles, meaning the court divides property fairly but not necessarily equally. Dissipation is just one factor courts consider in this division, alongside things like each spouse's contribution to the marital estate, duration of the marriage, and each spouse's economic circumstances. 

Final Thoughts 

Dissipation claims can significantly impact property division in an Illinois divorce, but they're also complex and highly face specific. Success depends on timely filing, thorough documentation, and clear evidence showing when and how marital funds were misused. 

If you suspect your spouse has dissipated assets, document everything and consult with an experienced Illinois divorce attorney as soon as possible. Likewise, if you're facing a dissipation claim, gather detailed records of your spending and be prepared to show that funds were used for legitimate purposes. 

The shifting burden of proof in these cases makes them particularly challenging, which is why proper legal guidance is essential. With the right approach and evidence, dissipation claims can help ensure that both parties receive their fair share of the marital estate, even when one spouse has attempted to undermine that outcome through improper spending. For legal assistance and guidance, contact us at Katherine Maloney & Associates at 815-556-2057.