We’ve all seen the trope in movies on TV where an angry wife throws her husband’s things out the bedroom window onto the front lawn. Some movies take it even further and a spouse will burn the other spouse’s things in an effort to “get her groove back.” In real life, however, this doesn’t happen very often.
Things go missing over the course of a divorce or separation. Usually, the other spouse explains missing items with a shrug and an “I don’t know.”
A divorcing couple will have access to each other’s household items and those items get thrown out or disappear over the course of time. What duty does each spouse have towards the other spouse’s things? Can a spouse throw out the belongings of their spouse? What happens if items are thrown out or go missing during a divorce?
Is There A Rule Against Throwing Away Things During An Illinois Divorce?
There is definitely NOT a rule in Illinois about throwing away things during an Illinois divorce. In fact, a spouse can do whatever they want with whatever property is in their possession or control EVEN if it destroys the interest their spouse has in that property.
“In Illinois…the owner of property has an absolute right to dispose of his property during his lifetime in any manner he sees fit, and he may do so even though the transfer is for the precise purpose of minimizing or defeating the statutory marital interests of the spouse in the property conveyed.” Johnson v. La Grange State Bank, 383 NE 2d 185 – Ill: Supreme Court 1978
The allowance of disposal of personal property during a divorce applies to both property that is presumed to be marital and non-marital. No spouse has automatic exclusive rights to anything either spouse owns. Therefore, in Illinois, either spouse can throw out anything either spouse owns.
“[U]ntil a final determination is made by the trial court regarding the division of the disputed personal property pursuant to the petition for dissolution of marriage, respondent can claim no clear, ascertainable legal right to the exclusive possession of that property. At the present time, each party has an equal possessory right.” In re Marriage of Sherwin, 123 Ill. App. 3d 748, 753 (Ill. App. Ct. 1984)
There is no marital property in Illinois until a final judgment deems the property marital. Until then, people can throw away property that (in name or possession) belongs to them until further order of court.
“[U]nder the [Marriage and Dissolution of Marriage] Act, operation of the term “marital property” does not trigger until the time of dissolution. It is only property owned at the time of the judgment of dissolution that the court may classify as “marital property,” and property owned separately by the spouse before dissolution may be disposed of as he/she deems fit, absent any contrary order of the court. The court has power to adjust and determine the rights of one party in the property of the other only where a divorce has been granted.” In re Marriage of Schwartz, 131 Ill. App. 3d 351, 355 (Ill. App. Ct. 1985) (Citations Omitted)
The only way to legally stop a spouse from throwing something away in an Illinois divorce is file a motion for a temporary restraining order.
Either spouse can file a motion requesting that an Illinois divorce court “restrain[s] any person from transferring, encumbering, concealing or otherwise disposing of a any property except in the usual course of business or for the necessities of life” 750 ILCS 5/501(a)(2)(i)
Divorcing people usually do not insanely throw away their spouse’s things. Instead, divorcing people usually come up with a tacit or official agreement not to throw out each other’s stuff.
Coming To An Agreement About Personal Belongings In An Illinois Divorce
When people call me up about a divorce, I always tell them, “If it’s between hiring a divorce lawyer and paying the first month’s rent on an apartment for yourself…pay the rent.”
A divorce lawyer can do nothing for your physical, mental and emotional health. A new place to live can give you the space you need to adequately rest and make the next subsequent strategic decision in your divorce. Also, a new apartment is a great place to safely store all your stuff that you want to keep during and after the divorce. But, a new apartment probably won’t fit all of your stuff while the divorce is pending.
When most couples finally get divorced their Marital Settlement Agreement includes a clause that will read: “The parties have previously divided all furniture, furnishing, personal jewelry, clothing, books, and memorabilia equally and to their mutual satisfaction. Said property, as divided, shall be deemed the sole property of the party who has possession, free and clear of any claim of the other.”
A broad clause about personal items keeps either party from having to maintain an inventory of their personal belongings. What’s mine is mine. What’s yours is yours.
Some people can’t move out with all their things. Spouses who leave the marital residence leave items at the marital residence and then are told that that those items are no longer available when the final divorce settlement is drawn up.
What Happens When Items Get Thrown Out In An Illinois Divorce
When an item goes missing that one spouse wants to account for in the divorce, that spouse is faced with two challenges: 1) What happened to the item and 2) What was the item worth?
If the items were incontrovertibly thrown out by your spouse there are a variety of ways to ask an Illinois divorce court to force your spouse to compensate you for the missing items.
In theory, Illinois divorce courts don’t care about bad behavior. They just care about fair distribution of marital assets.
Illinois divorce courts “divide…marital property without regard to marital misconduct in just proportions” 750 ILCS 5/503(d)
When Illinois divorce courts make that distribution of marital assets the courts are allowed to consider, “each party’s contribution to the acquisition, preservation, or increase or decrease in value of the marital or non-marital property” 750 ILCS 5/503(d)(1) (emphasis mine)
Throwing something away is de facto decreasing that thing’s value to zero. A court can simply give the spouse who had their things thrown out a bigger piece of the marital pie to compensate them.
In my experience, spouses rarely openly confess to throwing things of value in the garbage. Furthermore, outside of video evidence, how could you possibly prove that a spouse threw something in the garbage. “Who else could have done it?” is usually not a sufficient evidentiary standard in an Illinois court of law.
What Happens When An Item Goes Missing In An Illinois Divorce?
When a spouse denies that they threw an item out, you don’t actually need to prove that they threw it out. Instead, you can simply allege a dissipation of assets which triggers an Illinois law which requires the alleged dissipater to prove they didn’t throw the item out.
“Dissipation is defined as the use of marital property for one spouse’s sole benefit for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown.” In re Marriage of Tietz, 605 NE 2d 670 – Ill: Appellate Court, 4th Dist. 1992
Dissipation is a concept usually used for money spent on frivolous non-marital purposes: alcohol, drugs, boyfriends/girlfriends. Conceptually, throwing out or destroying something of value is no different than dissipating marital funds.
“Dissipate” means “[t]o destroy or waste, as to expend funds foolishly.” (Black’s Law Dictionary 425 (5th ed. 1979).)
Dissipation requires a very formal notice in order to shift the burden of proof to the spouse who denies dissipating.
“[A] notice of intent to claim dissipation shall be given no later than 60 days before trial or 30 days after discovery closes, whichever is later;
(ii) the notice of intent to claim dissipation shall contain, at a minimum, a date or period of time during which the marriage began undergoing an irretrievable breakdown, an identification of the property dissipated, and a date or period of time during which the dissipation occurred;
(iii) a certificate or service of the notice of intent to claim dissipation shall be filed with the clerk of the court and be served pursuant to applicable rules” 750 ILCS 5/503(d)(2)
You can only go so far back in alleging a spouse threw something away.
“[N]o dissipation shall be deemed to have occurred prior to 3 years after the party claiming dissipation knew or should have known of the dissipation, but in no event prior to 5 years before the filing of the petition for dissolution of marriage” 750 ILCS 5/503(d)(2)”
It is hard to imagine anything with any value going missing and the aggrieved party not noticing it for over 3 years. So, don’t expect to reach too far back.
At this point, the alleged dissipater must prove they did not dissipate, destroy, throw away the funds/items.
“The general principle is that a person charged with the dissipation is under an obligation to establish by clear and specific evidence how the funds were spent.”In re Marriage of Petrovich, 507 NE 2d 207 – Ill: Appellate Court, 2nd Dist. 1987
Testimony such as “I don’t remember” will not be sufficient to avoid a finding of dissipation.
“General and vague statements that the funds were spent on marital expenses or to pay bills are inadequate to avoid a finding of dissipation.” Id.
“[T]he circuit court is required to find dissipation where the charged party fails to meet his burden of showing that marital funds were used for marital purposes.” In re Marriage of Hubbs, 843 NE 2d 478 – Ill: Appellate Court, 5th Dist. 2006
In the end, the court will assess the credibility of the alleged dissipater as to whether he/she threw out or destroyed the items in question.
“In making its decision as to dissipation, the trial court must determine the credibility of the spouse charged with dissipation.” In re: the Marriage of Berberet, 2012 IL App (4th) 110749
Upon a finding of dissipation, the court allocates marital assets based on “the dissipation by each party of the marital property” 750 ILCS 5/503(d)(2)
The problem is determining the value of that dissipated property so that the court can award the aggrieved party something of equivalent value.
Valuing Property That Was Thrown Away During An Illinois Divorce?
One man’s trash is another man’s treasure. The trouble is determining the value of something one person thought was trash and the other person thought was treasure.
The court is going to just assign the trashed item a value based on their own experience in the general marketplace of goods.
The only way to prove to the court that a missing item had a specific value is to present evidence.
“To place a specific value on an item of marital property, there must be competent evidence of its value presented. Generally, the valuation of assets in an action for dissolution of marriage is a question of fact, and the trial court’s determination will not be disturbed absent an abuse of discretion. But where a party does not offer evidence of an asset’s value, the party cannot complain as to the disposition of that asset by the court. Parties should not be allowed to benefit on review from their failure to introduce evidence at trial.” In re Marriage of Abu-Hashim, 2014 IL App (1st) 122997 (Citations Omitted)
How do you let a court inspect an item for quality when it is no longer available?
Hopefully there are similar items for sale. If so, the court could take judicial notice of the items value via Amazon, Ebay or other sites where the items are for sale in a reliable free-market auction format.
Items without equivalent products for sale will require the testimony of some kind of appraiser who will have to be certified as an expert witness in order to testify to their opinion as to missing item’s value.
You cannot say, “the guy at the pawn shop told me it was worth X” that is hearsay. In an Illinois court proceeding, you cannot testify to something that you do not have personal knowledge of or it is mere speculation.
When your spouse is throwing away things that you care about, they are doing anything from spring cleaning to actively trying to hurt you. Either way, it has to stop. Contact my Chicago, Illinois family law firm to speak with experienced Chicago divorce attorney about your options when your spouse throws away your things.