Posted on April 4, 2020

Drugs, Alcohol and Divorce in Illinois

Whether it’s the stress of the divorce or a long simmering issue, drugs and alcohol are frequent issues in Illinois divorces.

Many other issues in divorce are black and white issues; he hit you or he didn’t, she made the money or she didn’t, his schedule allows for time with the kids or it does not.  Drugs and alcohol, however, seem to be a big “gray area” in our society…and it’s getting grayer.

Almost everyone drinks.  The divorce judge probably drinks.  So how much alcohol is too much? And who even keeps track of that?

Marijuana was illegal until just a few months ago and now marijuana is legal in Illinois…if you buy it legally. So, does it matter if someone smokes marijuana in the eyes of an Illinois divorce judge?  Does it matter where the marijuana came from? How do you even quantify the amount smoked?

Prescription drugs should be okay…so long as they’re taken as prescribed.  But even if they are, a prescription is a doctor’s official opinion that something is wrong.  Can prescription drugs affect an Illinois divorce? 

The real issue is addiction.  If drugs and alcohol weren’t addictive, people would stop using them for the sake of their marriage and their children.  So, if you’re divorcing an alcoholic or divorcing a drug addict, you need to know what Illinois divorce laws are available to protect you and your children.  These same Illinois divorce laws are very powerful and if you’re accused of being an addict you need to protect yourself appropriately. 

How Drugs And Alcohol Do Not Affect An Illinois Divorce

Drugs, alcohol and personality disorders go hand in hand with divorce.  Neither the judge nor the legal system will, in the end, label one party an “alcoholic” or a “drug addict” and make some final conclusion that one party was the “good person” and the other party was the “bad person.”

Any attempt at character assassination in a divorce court will usually be met with an eye roll from the judge.  No description of binge drinking, bong smoking, or hard drugs will shock an experienced Illinois divorce judge.  The question is “how do drugs and alcohol effect the issues in a divorce?”

If the marriage had no children…drugs and alcohol probably have zero impact on an Illinois divorce.  But in extreme cases of addiction, the issue of drugs and/or alcohol may hang over the entire case as you’ll see below. 

Drugs and Alcohol in an Illinois Divorce with No Children

When there aren’t any children in marriage which is being dissolved, drugs and alcohol only have one impact: dissipation of assets.

Dissipation of assets 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.” In re Marriage of O’Neill, 138 Ill. 2d 487, 489 (Ill. 1990)

Spending money on drugs and alcohol probably fits that definition exactly.  Drugs and alcohol consumption is “for the sole benefit of one of the spouses” and is “unrelated to the marriage.”  Contrast this to spending money on groceries, for example.

So, one spouse can allege that the drug or alcohol abusing spouse spent money on drugs or alcohol and therefore, the non-drinking on non-drug using spouse should get 50% of that money spent back because the money, presumably should have been saved. 

The issue is “how do you prove that the money was spent on drugs and alcohol?” 

This is where Illinois law gets really weird.  The accuser doesn’t have to prove the money was spent on drugs and alcohol at all.  The person accused of spending money on drugs and alcohol has the burden of proving that they DID NOT spend the money on drugs and alcohol.

“A party charged with dissipation carries the burden of proving he did not, in fact, dissipate assets.” In re Marriage of Toole, 273 Ill. App. 3d 607 (2nd Dist. 2005)

And you can’t just say, “I like to carry a lot of cash” or “I never order wine with my meals.”  You have to actually show what you spent the money on if the money was not actually spent on drugs and alcohol.

“General and vague statements that the funds were spent on marital expenses or to pay bills are inadequate to avoid a finding of dissipation.” In re Marriage of Smith, 128 Ill. App. 3d 1017, 1022 (Ill. App. Ct. 1984)

Alcohol simply isn’t that expensive so it rarely becomes a dissipation issue.  If you’re running up credit card bills at a bar, that might be a different story. 

But, if you’re buying a handle of vodka a week with your groceries, that’s going to be hard to differentiate from the groceries let alone determine the total value.

Drugs are a different story.  Drugs are expensive and you have to buy illegal drugs with cash.  So, every withdrawal from an ATM automatically becomes a suspect for dissipation.  Because the burden is on the accused, how does one even defend these withdrawals?

You better have a legitimate expense that requires hundreds of dollars in cash a week. Otherwise, those withdrawals will be very easy to total up via bank statements. 

The Illinois statute puts a limit on how far back a dissipation claim can go:

“no 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)(iv)

So, the damage of a dissipation claim can only go back so far.  All drug or alcohol dissipation claims would almost surely fall within the 3 year time line because of the “knew or should have known” language.  Because how can someone realistically be a secret alcoholic or drug addict to the point where a dissipation claim would be necessary. 

There is a defense to a dissipation claim based on drugs and alcohol, though.  If both people were getting drunk or high together, the money expended on drugs or alcohol could be use of marital property for the sole benefit of BOTH spouses and thus be for a purpose RELATED to the marriage.

More practically, you can say “I always used drugs and/or alcohol and she knew what she was getting into. In fact, she often joined me.”

After all, who is just going to sit and watch their spouse get drunk or high for three years on end?

Drugs and Alcohol in An Illinois Divorce With Children

All decisions about parental responsibility and parenting time are made based on the best interests of the child.  “The court shall allocate parenting time according to the child’s best interests.” 750 ILCS 5/602.7

It is very difficult to say that you can make decisions that are in the best interests of the child if you are often drunk or high. 

It is very difficult to say that it is in the best interest of the child to spend time with you if you are drunk or high during your time with the child. 

To put it simply, you cannot drink or do drugs while your children are in your care. 

If you suspect and can prove that your child’s parent has been drinking or using drugs during parenting time, you can immediately motion to reduce that parent’s time with the child.

“After a hearing, if the court finds by a preponderance of the evidence that a parent engaged in any conduct that seriously endangered the child’s mental, moral, or physical health or that significantly impaired the child’s emotional development, the court shall enter orders as necessary to protect the child. Such orders may include, but are not limited to, orders for one or more of the following:

(1) a reduction, elimination, or other adjustment of the parent’s decision-making responsibilities or parenting time, or both decision-making responsibilities and parenting time;

(2) supervision, including ordering the Department of Children and Family Services to exercise continuing supervision under Section 5 of the Children and Family Services Act;

(4) restraining a parent’s communication with or proximity to the other parent or the child;

(5) requiring a parent to abstain from possessing or consuming alcohol or non-prescribed drugs while exercising parenting time with the child and within a specified period immediately preceding the exercise of parenting time;

(6) restricting the presence of specific persons while a parent is exercising parenting time with the child;

(8) requiring a parent to complete a treatment program for perpetrators of abuse, for drug or alcohol abuse, or for other behavior that is the basis for restricting parental responsibilities under this Section; and

(9) any other constraints or conditions that the court deems necessary to provide for the child’s safety or welfare.” 750 ILCS 5/603.10(a)

If you’re already divorced or already have a parenting order in place, you can ask the court to modify that parenting order based on drug or alcohol use.

“The court may modify an order restricting parental responsibilities if, after a hearing, the court finds by a preponderance of the evidence that a modification is in the child’s best interests based on (i) a change of circumstances that occurred after the entry of an order restricting parental responsibilities; or (ii) conduct of which the court was previously unaware that seriously endangers the child. In determining whether to modify an order under this subsection, the court must consider factors that include, but need not be limited to, the following:

(1) abuse, neglect, or abandonment of the child;

(2) abusing or allowing abuse of another person that had an impact upon the child;

(3) use of drugs, alcohol, or any other substance in a way that interferes with the parent’s ability to perform caretaking functions with respect to the child” 750 ILCS 5/603.10(a)

Courts can completely limit a parent’s right to see their child if there is ongoing drinking. “In light of the evidence concerning [a parent’s] continued use of alcohol and the danger this has posed to [the child], [The Parent] shall only be permitted to visit with [the child] if he is in the company of one of his parents or any other responsible adult designated by the trial court. [The parent’s] visitation with [the child] shall continue to be supervised in such a manner until he is able to demonstrate to the trial court that he is no longer using alcohol and unsupervised visitation will pose no danger to [the child].” In re Marriage of Oertel, 216 Ill. App. 3d 806, 817 (Ill. App. Ct. 1991)

How do you prove that your child’s parent was drunk or high while exercising parenting time?  Usually, there’s an incident where the police are involved and report that the person appeared drunk or high.  If this incident was in a moving vehicle, the police will even record the parent’s drug alcohol level pursuant to a DUI charge. 

Outside of a horrible incident where testing is mandated by law, it is going to be pretty difficult to prove that a parent was drunk or high.

Even if the parent gets drunk or high on a regular basis, if that parent is not drunk or high around the children…it is likely that nothing will happen. “It is well established that a parent’s use of drugs is relevant to the issue of custody only if the parent’s conduct can be shown to affect his mental or physical health and his relationship with the child.” In re Custody of Gonzalez, 204 Ill. App. 3d 28, 34 (1990)

Testimony from the other parent is usually sufficient to establish dangerous drinking. That testimony should be corroborated by a Guardian Ad Litem. 

A court can restrict “[the parent with the alleged alcohol problem’s] parenting time to supervised visitation based primarily on its finding that [the parent with the alleged alcohol problem’s] alcohol use posed a serious endangerment to [the child]. This finding was supported by credible testimony from [the other parent] that [the parent with the alleged alcohol problem] would frequently drink to excess and become inebriated and was further corroborated by unrebutted testimony from the guardian ad litem that [the parent with the alleged alcohol problem] received a citation for driving under the influence.” In re Marriage of Palarz, 2022 IL App (1st) 210618

If the drug and/or alcohol abuse was significant and ongoing, the parent may never get normal time back with their child. 

“[P]ast alcohol abuse by the custodial parent [is] a significant factor in the affirm[ing a] modif[ication of] custody although there was evidence…that the custodial parent had stopped drinking.” In re Marriage of Oertel, 216 Ill. App. 3d 806, 815 (Ill. App. Ct. 1991)

“Although the record in this case shows that [the alcoholic parent] had made substantial progress in treating the effects of her alcoholism, her abuse of alcohol and drugs was quite pronounced. [W]e are far from assured that [the alcoholic parent] will not fall back into those habits which posed such a threat to [them]self and to [the child].” In re Marriage of Neeld, 96 Ill. App. 3d 40, 48 (Ill. App. Ct. 1981)

Drug And Alcohol Testing In An Illinois Divorce

The temptation of the parent accused of abusing drugs or alcohol will always be to submit to a court-ordered drug and/or alcohol testing regimen. NEVER DO THIS VOLUNTARILY!

Drug or alcohol testing means that you are under order to get tested either at regular fixed times or at sporadic random times to ensure your sobriety.  This is a massive hassle and it paints you as the problem in the eyes of the court. 

Even after you’ve tested negative repeatedly, the other party will never be satisfied that you are truly sober.  You will need to get a 2nd order to cease the drug and alcohol testing.

While marijuana and other drugs can stay in your hair for weeks, alcohol is out of your system within hours.  That means alcohol testing is usually twice daily through technology like Soberlink. 

Soberlink is a breathalyzer that reports results wirelessly and also takes a picture of the person blowing to ensure accuracy. 

Soberlink has its merits but Soberlink reports back “positive blows” if you use mouthwash or if yogurt further ferments in your stomach.  Try to convince your ex that you weren’t drunk when a low-level positive blow occurs.  Even Illinois divorce judges will be incredulous.

Who pays for all of this drug and alcohol testing? It’s almost always the accused! 

Drug and alcohol testing is expensive, invasive and only bad things can come from drug and alcohol testing in an Illinois divorce case.  Make the opposing counsel put on their case and prove that drug and alcohol testing is necessary.  Do not volunteer for drug and alcohol testing.

While I am against drug and alcohol testing for my clients, I am a big fan of writing in a mutual policy of no drinking in the divorce decree. Then if someone is drinking when children are present, it’s not a question of whether it was too much alcohol or if the children were in danger…the only question is did they violate the order.  This is simpler and more practical for everyone.

If Someone Has a Drug or Alcohol Problem, What Kind Of Treatment Will They Need In An Illinois Divorce?

If there are no children from the marriage, the courts will not care if the person remains a drug addict or an alcoholic.  Assets and debts will be divided and maintenance may be ordered and that’s it.  Have a nice life.

If the marriage has children and one parent has an addiction issue then the court may appoint an “evaluator” to figure out what the level of addiction is and how it should be treated.  This evaluator is almost always a psychiatrist.

“Court’s professional. The court may seek the advice of any professional, whether or not regularly employed by the court, to assist the court in determining the child’s best interests. The advice to the court shall be in writing and sent by the professional to counsel for the parties and to the court not later than 60 days before the date on which the trial court reasonably anticipates the hearing on the allocation of parental responsibilities will commence. The court may review the writing upon receipt. The writing may be admitted into evidence without testimony from its author, unless a party objects. A professional consulted by the court shall testify as the court’s witness and be subject to cross-examination. The court shall order all costs and fees of the professional to be paid by one or more of the parties, subject to reallocation in accordance with subsection (a) of Section 508.

The professional’s report must, at a minimum, set forth the following:

(1) a description of the procedures employed during the evaluation;

(2) a report of the data collected;

(3) all test results;

(4) any conclusions of the professional relating to the allocation of parental responsibilities under Sections 602.5 and 602.7;

(5) any recommendations of the professional concerning the allocation of parental responsibilities or the child’s relocation; and

(6) an explanation of any limitations in the evaluation or any reservations of the professional regarding the resulting recommendations.”

This evaluator will usually be working hand-in-hand with a Guardian Ad Litem to determine the level of the parent’s addiction and what relationship is appropriate for the parent to have with the children in light of that addiction.  Those recommendations are almost always adopted by the judge who approves the final allocation of parenting responsibilities and parenting time.

A treatment plan can also be proposed so that a new parenting schedule can be changed upon finalization of treatment.  Usually, treatment is recommended and the parenting plan is explicitly modifiable upon completion of said treatment. 

Addiction and Divorce in Illinois

If a person’s addiction and other abnormal behaviors are so extreme that they threaten to bleed into all aspects of the divorce, not just parenting time and parenting responsibilities, a lawyer can ask for a “Rule 215 – Physical and Mental Examination of Parties and Other Persons

Rule 215 of the Illinois Supreme Court rules provides that: “In any action in which the physical or mental condition of a party or of a person in the party’s custody or legal control is in controversy, the court, upon notice and on motion made within a reasonable time before the trial, may order such party to submit to a physical or mental examination by a licensed professional in a discipline related to the physical or mental condition which is involved.”

This professional is almost always a psychiatrist.  The professional will then issue a report of their findings.

“Within 21 days after the completion of the examination, the examiner shall prepare and deliver to the attorneys for the party requesting the examination and the party examined a written report of the examination, setting out the examiner’s findings, results of all tests made, and the examiner’s diagnosis and conclusions.” Ill. Sup. Ct. R. 215

The examiner is then usually required to be sworn in as a witness in order to submit this report to the judge.  The report will detail the party’s addiction, drug and alcohol issues (or lack thereof) and this will clearly color the entire case. 

A 215 examination is extremely expensive but an official report saying that a spouse is an addict is devastating in an Illinois divorce trial. 

If your spouse is addicted to drugs and/or alcohol and you’d like to know how this will impact your Illinois divorce, please give us a call. We can discuss if we want to open this Pandora’s box and, if we do, how to best use it to your advantage.

If you are being accused of having a drug or alcohol issue by your spouse in your pending or current Illinois divorce or parentage case, please contact an experienced Illinois divorce lawyer.  These accusations spin way out of control and then can affect your life in ways you can’t even imagine. 

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Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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