Dividing marital assets in an Illinois divorce is not done with a pure 50/50 split analysis. Illinois courts divide marital assets in “just proportions.”
“Just proportions does not mean strict equality but only an equitable division.” In re Marriage of Albrecht, 266 Ill. App. 3d 399, 402 (Ill. App. Ct. 1994)
Illinois courts consider multiple factors when weighing those “just proportions” for the purposes of dividing marital assets.
Illinois divorce courts “shall divide the marital property without regard to marital misconduct in just proportions considering all relevant factors, including:
the dissipation by each party of the marital property” 750 ILCS 5/503(d)(2)
Dissipation is spending money on a non-marital purpose…when the marriage is already undergoing significant problems.
“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
That dissipated money can be clawed back if it is specifically alleged what was dissipated and when the marriage began an “irretrievable breakdown.”
“[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” 750 ILCS 5/503(d)(2)(emphasis mine)
There is no distinction between “irreconcilable breakdown of a marriage” and “irretrievable breakdown of a marriage.” Illinois “courts have used the two terms interchangeably in discussing dissipation” In re Marriage of Romano, 968 NE 2d 115 – Ill: Appellate Court, 2nd Dist. 2012
The necessary moment when a marriage begins its irreconcilable breakdown arrives before the grounds for divorce in Illinois, irreconcilable differences, are established.
“[D]issipation 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 irreconcilable breakdown not after the marriage is irreconcilably broken.” In re Marriage of Holthaus, 899 NE 2d 355 – Ill: Appellate Court, 2nd Dist. 2008 (quoting In re Marriage of O’Neill, 563 NE 2d 494 – Ill: Supreme Court 1990)
“Dissipation is to be calculated from the time the parties’ marriage begins to undergo an irreconcilable breakdown, not from a date after which it is irreconcilably broken.” In re Marriage of Holthaus, 899 NE 2d 355 – Ill: Appellate Court, 2nd Dist. 2008 (emphasis mine)
This moment when a marriage undergoes an irreconcilable breakdown typically occurs long before the divorce is filed. “[D]issipation is possible even though the act occurred prior to the commencement of the dissolution proceedings” In re Marriage of Smith, 471 NE 2d 1008 – Ill: Appellate Court, 2nd Dist. 1984
“[T]he relevant time frame for dissipation commences when the marriage begins to undergo an irreconcilable breakdown” MARRIAGE OF SCHNEEWEIS AND SCHNEEWEIS, Ill: Appellate Court, 2nd Dist. 2016
Establishing when a marriage began in irretrievable breakdown is done by considering the evidence.
For example, one court considered that “the parties stopped having marital relations, sleeping in the same bedroom, living in the same part of the house, sharing meals, and communicating. They were living in an environment that…was hostile.” In re Marriage of Holthaus, 899 NE 2d 355 – Ill: Appellate Court, 2nd Dist. 2008
Other courts have found that a marriage can be tumultuous without beginning an irreconcilable breakdown of that marriage. “While there had been periods of separation throughout the marriage, the parties had always reconciled. Indeed, upon Frank’s request, Dorothy returned home after the February 1986 separation. It was not until December 1986 that Frank filed for dissolution. While it is possible to find an irreconcilable breakdown prior to commencement of dissolution proceedings…there is no indication that such finding is warranted here.” In re Marriage of Getautas, 544 NE 2d 1284 – Ill: Appellate Court, 2nd Dist. 1989
Illinois divorce courts will NOT consider every little argument as the beginning of an irretrievable breakdown in the marriage.
“[N]ot every incident or conflict that occurs during a marriage signals that the marriage has begun to undergo an irreconcilable breakdown.” In re Marriage of Romano, 968 NE 2d 115 – Ill: Appellate Court, 2nd Dist. 2012
“While [a] petitioner [may] list incidents and conflicts which in retrospect may appear to mark the beginning of a gradual process culminating in marital breakdown, they cannot be said to display a marriage inevitably headed for breakdown. Thus, they cannot be said to signal the start of the process “undergoing irreconcilable breakdown.” In re Marriage of Hazel, 579 NE 2d 1265 – Ill: Appellate Court, 5th Dist. 1991
It would be unreasonable to “require courts to examine every argument or conflict in the marriage from the moment vows are exchanged to the date of dissolution to determine if such an event was in fact the moment at which the marriage began undergoing irreconcilable breakdown.” In re Marriage of Hazel, 579 NE 2d 1265 – Ill: Appellate Court, 5th Dist. 1991
Once the period of applicable time for the dissipation has been defined and the dissipation has been specifically alleged, the burden then shifts to the alleged dissipator to prove that they did not, in fact, dissipate those assets.
“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
The burden requires strict proof that the funds were not dissipated. This means documentary proof. Not mere testimony.
“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.
Without documentary proof, “[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
This is such a difficult standard to meet that most divorcing parties accused of dissipation are better served fighting over when the irretrievable breakdown of the marriage happened so as to eliminate some (if not all) of the dissipation allegations.
When an Illinois divorce court makes a finding of dissipation, the Illinois divorce court will typically award a portion of the marital estate to the non-dissipating spouse. That additional portion of the marital estate would have been equal in value to the portion of the assets they would have received had the dissipating spouse not spent the money on a non-marital purpose.
For example, if Fred was found to have dissipated $ 30,000 and the remaining marital estate is $ 100,000, Wilma will be awarded $65,000 of the $ 100,000. ($30,000/2 + $100,000/2)
Dissipation allegations are serious in an Illinois divorce. One spouse can easily waive off dissipation claims by saying “she always knew I was a drunken gambler…in fact, we did it together.” Therefore, establishing a credible timeline as to when the marriage began its inevitable breakdown is crucial for establishing and defending against dissipation claims in an Illinois divorce.
If you have a dissipation claim you would like to discuss, contact my Chicago, Illinois family law firm to determine if the dissipation claim can survive the question of when the true “beginning of the end” was for your marriage.