Posted on April 18, 2020

Gambling And Divorce In Illinois

After having divorced over a thousand people, I’ve found there’s usually an underlying issue in every divorce.  Whether it’s a sex issue, a substance issue or a personality disorder, there’s usually an issue that is so aggravating to the marriage that a divorce becomes necessary.  One of the biggest causes of divorce is gambling by a spouse.  So, how does gambling affect divorce in Illinois?

It’s very common for a married couple to prepare a budget together.  In this budget will be their incomes and their expenses. If there isn’t an explicit family budget, there’s an implied family budget.  The expenses in a family budget never include “gambling losses.” So when a big gambling loss occurs, it becomes a family problem.

Is Gambling Grounds For Divorce In Illinois

While a gambling problem is good reason to divorce someone it is not a legal reason to divorce someone in Illinois.  In Illinois, there is only one reason (called “grounds“) for why anyone gets a divorce: irreconcilable differences.

The underlying issues, gambling, etc, get dealt with through the divorce process via temporary motions and the final judgment.

A gambling addiction is horrible and my heart goes out to the gambler and their spouses. But both parties, the gambler and the spouse, need to know how to protect themselves in an Illinois divorce.

How Do I Stop My Spouse From Gambling?

Before assets get divided up, you have to make sure they don’t get gambled away.

Upon filing a petition for dissolution of marriage, a spouse can also file a restraining order preventing the gambling spouse from gambling.

Of course, gambling is often a compulsive addiction and the gambling spouse may flout the restraining order because it’s impossible to follow the gambling spouse all day. The court has no jurisdiction over casinos or other gambling dens to keep the gambling spouse out of their establishments.

The court could order the gambling spouse to put themselves on a self-exclusion list at a casino. It’s an agreement between the gambler and the casino for the casino to deny the gambler entrance in the future.

The problem with the self-exclusion list is that self-exclusion lists are permanent and a divorce court doesn’t have the authority to enter permanent orders via temporary relief.

These solutions are all rather extreme.  The best bet is to quickly get divorced so you can extricate yourself from the gambling spouse’s addiction and/or freeze any funds the spouse can possibly gamble with.

Lost Money From Gambling In Illinois

The real problem with gambling is the losses.  Is there any way for the non-gambling spouse to get some of the money back that was gambled away?

There actually is a system for recouping gambling losses in a divorce, it’s called recovering “dissipated assets

When an Illinois court is dividing the debts and assets of a divorcing couple, the court can also consider any assets that were “dissipated” or spent on a non-marital purpose.

If an asset is deemed to have been dissipated then the innocent spouse gets back 50% of the value of that asset as though the asset was never wasted in the first place.

For example, if Harry gambled $ 60,000 in the last year of the marriage and there was $ 200,000 in assets to divide between Harry and Sally, the court would award Sally her 50% of the assets $ 100,000 plus half of the wasted money ($30,000) as though they still had it.  So, Sally would get $130,000 and Harry would get $70,000

Illinois case law says that “Dissipation is defined as the use of marital property for one spouse’s 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.

Gambling is routinely found to be a dissipation of marital assets.

“[M]oney spent on his trip to Las Vegas was obviously not money spent for a marital purpose.” In re Marriage of Smith, 448 NE 2d 545 – Ill: Appellate Court, 1st Dist. 1983

When a “debt was incurred to satisfy [a spouse’s] gambling debts and was incurred without leave of court and without [the other spouse’s] consent [it will be deemed dissipation].” In re Marriage of Sobo, 562 NE 2d 1083 – Ill: Appellate Court, 1st Dist., 4th Div. 1990

The issue with gambling and dissipation is did the dissipation occur “at a time when the marriage is undergoing an irreconcilable breakdown?”  A gambling addict was probably gambling the entire marriage…so when is the cut off for recouping the dissipated funds?

The Illinois statute settles this for us by saying “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 503(d)(2)(iv)

So, if you knew about the gambling you can only reach back 3 years.  If you didn’t know, you can reach back a maximum of 5 years from the date you filed the petition for divorce.

To claim this dissipated amount you must perform some very specific actions per the statute. You must file

“i)[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 503(d)(2)

This sounds like a lot of work but, the good news is, once you’ve done these three steps there’s no more work to do…your spouse has to prove he or she DID NOT dissipate the money after these steps.

Unlike the rest of a divorce case where the party trying to prove something has to prove it themselves, after a dissipation claim is filed the party charged with dissipation carries the burden of proving he or she did not dissipate the assets described the filing. In re Marriage of Toole, 273 Ill. App. 3d 607 (2nd Dist. 2005)

Even if your description of the assets lost are vague like “He made $ 90,000 in 2018 but only deposited $60,000 in the joint account” the other party is going to have prove where that other $ 30,000 went even if it’s obvious it was mostly taxes.

Also, It’s not enough for the gambling spouse to simply remember that he or she spent the money on something legitimate like groceries. “If expenditures are not documented adequately by the person charged with dissipation, the courts will affirm a finding of dissipation.” In Re Marriage of Tietz, 605 NE 2d 670 Ill Appellate Court, 4th Dist. 1992.

Getting Evidence of Gambling Losses In An Illinois Divorce

Even though the gambler has to prove he didn’t spend the money on gambling, you should still get some kind of evidence to bolster your claim that marital money was spent on gambling.

This is relatively simple, show bank statements with expenses on betting sites and casinos (even if it’s just at restaurants a casino).  Bank statements showing cash withdrawals at any time during the time frame described in your notice of dissipation should be evidence.

Most casinos are owned by a handful of companies like Harrah’s or Wynn’s resorts.  You can subpoena these companies for records associated with your spouse and they’ll let you know when your spouse stayed at the casino and, more importantly, what player accounts they had.

The casinos keep copious records…as required by law.

“Casinos and card clubs are subject to the recordkeeping requirements set forth and cross referenced in this subpart” 31 CFR 1021.400

“With respect to each deposit of funds, account opened or line of credit extended after the effective date of these regulations, a casino shall, at the time the funds are deposited, the account is opened or credit is extended, secure and maintain a record of the name, permanent address, and social security number of the person involved.” 31 CFR 1021.410(a)

“In addition, each casino shall retain either the original or a microfilm or other copy or reproduction of each of the following: (1) A record of each receipt (including but not limited to funds for safekeeping or front money) of funds by the casino for the account (credit or deposit) of any person. The record shall include the name, permanent address
and social security number of the person from whom the funds were received, as well as the date and amount of the funds received.” 31 CFR 1021.410(b)

“All records which are prepared or used by a casino to monitor a customer’s gaming activity.” 31 CFR 1021.410(b)(8)

“A separate record containing a list of each transaction between the casino and its customers involving the
following types of instruments having a face value of $3,000 or more:
(A) Personal checks (excluding instruments which evidence credit granted by a casino strictly for gaming, such as markers);
(B) Business checks (including casino checks);
(C) Official bank checks;
(D) Cashier’s checks;
(E) Third-party checks;
(F) Promissory notes;
(G) Traveler’s checks; and
(H) Money orders.” 31 CFR 1021.410(b)(9)(i)

You’ll note that credit cards do not appear in any of the gambling regulations. That’s because credit cards companies don’t allow the use of credit cards for gambling directly. So, credit cards are not a good way to trace gambling expenses.

You may need the subpoenaed evidence to counter whatever evidence your spouse will produce showing that the money was not lost while gambling.

Gambling Debt And Divorce in Illinois

Casinos issue people player accounts which is a line of credit that casinos allow the player to gamble with.

The reason casinos offer a line of credit is obvious, they know they will get all the money back from gambling losses.

The gambling spouse must list these gambling debts in their financial affidavit.  Technically, these gambling debts are marital if they occurred during the marriage.  The non-gambling spouse must ask the Illinois court to have gambling spouse be responsible for the debts.  No court would deny the allocation of gambling debt to the gambling spouse.

Sooner or later, all gambling addicts file for bankruptcy.  So, it’s important to be prepared for that eventuality.

Gambling Winnings In An Illinois Divorce

While gambling losses may be born entirely by the gambler, if the gambler wins more than they lose, both spouses get to share in the winnings under an equitable division of assets in an Illinois divorce.

This doesn’t seem fair does it?  So, you should probably remind the judge in your case of this contradiction and hope the divorce judge moves something at the margins in your favor because of it.

Gambling winnings are also income.  Maintenance and child support in Illinois are determined after calculating income “from all sources” 750 ILCS 5/504(b-3) and 750 ILCS 5/505(a)(3)(A)

Gambling winnings certainly count as “income from all sources.”

This begs the question, do gambling losses change income for the purposes of child support and maintenance?  Illinois law is silent on this issue so you should suggest it to the judge if it can help your case.

Gambling and Child Custody In An Illinois Divorce

Personally, I can’t see how gambling should affect a custody decision in an Illinois court.  The courts don’t consider financial issues when it comes to allocating parenting time and parenting decision making.

But, a gambling addiction is a sign of something.  Courts have required other sufferers of addiction to seek counseling or therapy to help address that addiction.  A request for counseling regarding a gambling addiction would probably be considered by an Illinois court but I have never seen it happen.

How To Defend Yourself Against a Gambling Dissipation Claim in An Illinois Divorce 

Beyond proving that you didn’t actually lose money gambling, there are two ways to have a court dismiss a dissipation claim for gambling in an Illinois divorce.

Claim that your spouse knew about and participated in the gambling.  Explain that gambling was an activity your spouse participated in at a distance.  “Only one person can place a bet and that was usually me.”  Show that your spouse went to the casino with you.  The court will hardly find your spouse to be an innocent party if this was the case.

You can also claim that you weren’t really gambling.  This actually works for fantasy sports.  The Illinois supreme court just issued an opinion stating that fantasy sports gambling is not gambling at all.  In Illinois, it’s not gambling if “the participant’s own skill has the opportunity to overcome chance.” Dew-Becker v. Wu. 2020 IL 124472

Well, that rule probably applies to all sorts of types of gambling that involve any kind of skill.  Most card games have a strong skill element.  Most sports betting has a skill element.

Unless you are playing roulette and slot machines, there’s probably a lot of skill involved and therefore you weren’t really gambling.

The counter-argument is that we don’t care if it’s officially gambling or not, the money was lost for a non-marital purpose.  Also, if there was a skill element involved, the gambling spouse wouldn’t have lost all the money, they would have made money.

If you’d like to talk about a gambling issue in your divorce, please call my Chicago, Illinois family law practice to arrange a free consultation with an experienced Chicago divorce lawyer.

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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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