Divorce and Marijuana In Illinois

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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Marijuana In An Illinois Divorce

Divorce and Marijuana In Illinois

Marijuana is now legal for recreational use in Illinois. Does this mean that the stressed-out, divorce litigant can light up a joint without fear of repercussion from both the police and their divorce judge?

Marijuana use, legal or not, can still be a salient issue in an Illinois divorce case.

How Legal Is Marijuana In Illinois?

In 2019 The Illinois Legislature declared in the Cannabis Regulation and Tax Act that “the use of cannabis should be legal for persons 21 years of age or older” 410 ILCS 705/1-5

People under 21, like children, cannot use or be exposed to marijuana.

“Nothing in [the Cannabis Regulation and Tax Act] is intended to permit the transfer of cannabis, with or without remuneration, to a person under 21 years of age, or to allow a person under 21 years of age to purchase, possess, use, process, transport, grow, or consume cannabis” 410 ILCS 705/10-15(a)

An adult who lets people under age 21 use marijuana in their home or vehicle will be guilty of a misdemeanor.

“It is unlawful for any parent or guardian to knowingly permit his or her residence, any other private property under his or her control, or any vehicle, conveyance, or watercraft under his or her control to be used by an invitee of the parent’s child or the guardian’s ward, if the invitee is under the age of 21, in a manner that constitutes a violation of this Section. A parent or guardian is deemed to have knowingly permitted his or her residence, any other private property under his or her control, or any vehicle, conveyance, or watercraft under his or her control to be used in violation of this Section if he or she knowingly authorizes or permits consumption of cannabis by underage invitees. Any person who violates this subsection (d) is guilty of a Class A misdemeanor and the person’s sentence shall include, but shall not be limited to, a fine of not less than $500.” 410 ILCS 705/10-15(d)

Selling marijuana remains a serious crime in Illinois.

“Any person who knowingly acts as a retailer of cannabis in this State without first having obtained a certificate of registration to do so in compliance with [the law] shall be guilty of a Class 4 felony” 410 ILCS 705/65-38(g)

Money Spent on Marijuana During An Illinois Divorce

Marijuana use has little impact in an Illinois divorce with no children.

Consistent and frequent marijuana use is not cheap. The expense of purchasing marijuana may be considered a dissipation of marital assets.

“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

Smoking marijuana (alone) is clearly for the sole benefit of the marijuana user.

Dissipation of marital assets allows an Illinois divorce judge to consider the dissipation when the assets and debts are equitably distributed.

A notice of dissipation of assets is filed and then the alleged marijuana user has the duty to prove they did not spend the money on marijuana.

“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)

While marijuana is legal, using credit cards or checks to purchase marijuana is not. Credit card companies and banks are governed by federal law…where marijuana is still illegal.

So, marijuana can only be purchased with cash. A spouse can claim that all cash withdrawals were spent on marijuana and then it’s the marijuana user’s duty to prove they did not spend that cash on marijuana.

“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)

Testimony that cash was spent on things other than marijuana will not be enough.

“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)

You can only look so far back when claiming a dissipation as “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)

Additionally, no dissipation can be alleged from a time when the parties were still getting along.

“[D]issipation 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, 387 Ill. App. 3d at 375

Imputing Income Due To Marijuana Use

The common perception of marijuana is that it robs the marijuana user of their ambition. Parents have a duty to pay child support based on their potential income. Use of marijuana is a good signal that a parent is not earning their true potential income.

“If a parent is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of potential income. A determination of potential income shall be made by determining employment potential and probable earnings level based on the obligor’s work history, occupational qualifications, prevailing job opportunities, the ownership by a parent of a substantial non-income producing asset, and earnings levels in the community.” 750 ILCS 5/505(a)(3.2)

Using a party’s potential income instead of their actual income is called “imputing income.”

“Imputation is appropriate in cases of voluntary unemployment or voluntary underemployment.” In re Marriage of Ruvola, 2017 IL App (2d) 160737

Portraying a spouse as a stoner on the couch is good way to convince an Illinois divorce judge that they are not working to their full potential.

Marijuana Use And Parenting Time In Illinois

“The court shall allocate parenting time according to the child’s best interests.” 750 ILCS 5/602.7

Determining a child’s best interests requires the courts to consider upwards of 17 factors.

One of those facts is “the mental and physical health of all individuals involved” 750 ILCS 5/602.7(b)(7)

The mental and physical health of a parent (or anyone associated with the parent) can be argued to be impacted by marijuana use.

The counter-argument is that marijuana use has no impact on a child’s relationship with their parent.

“In allocating parenting time, the court shall not consider conduct of a parent that does not affect that parent’s relationship to the child” 750 ILCS 5/602.7(c)

“[I]f [a parent] had used marijuana, in the absence of any showing that this interfered with [their] ability to properly care for the child, such use demonstrated a mistake in judgment and does not in and of itself indicate unfitness.” Fears v. Fears, 283 NE 2d 709 – Ill: Appellate Court, 5th Dist. 1972

“[M]arijuana use alone [is] not determinative of a [parent’s] right to continued custody even if proved in terms of present environment absent proof that such conduct had a detrimental effect on the child.” In re Custody of Ehr, 396 NE 2d 87 – Ill: Appellate Court, 2nd Dist. 1979

Proving Marijuana Use In An Illinois Divorce

Before marijuana was legal, a suspected user could just avoid the question of their marijuana use by invoking their 5th amendment right against self-incrimination. Now that marijuana is legal, marijuana users can be asked about their use in court.

If marijuana is an issue in an Illinois divorce, testing for marijuana use can be ordered by an Illinois divorce court.

“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.” Ill. Sup. Ct. R. 215(a)

This means the alleged marijuana use must submit themselves to inspection at a licensed professional’s office to conduct a toxicology report. Testing strips bought a Wal-Mart will not suffice.

A court can order any kind of investigation by any kind of professional if children’s issues are present in the case.

“Upon notice and a motion by a parent or any party to the litigation, or upon the court’s own motion, the court may order an investigation and report to assist the court in allocating parental responsibilities. The investigation may be made by any agency, private entity, or individual deemed appropriate by the court. The agency, private entity, or individual appointed by the court must have expertise in the area of allocation of parental responsibilities. The court shall specify the purpose and scope of the investigation.” 750 ILCS 604.10(d)

This “investigator” could be a lab and the “purpose and scope of the investigation” could be a marijuana test.

Finally, a Guardian Ad Litem or Child Representative may perform an ongoing investigation into a parent’s marijuana use.

“The child representative, attorney for the child or guardian ad litem shall also take whatever reasonable steps are necessary to obtain all information pertaining to issues affecting the child, including interviewing family members and others possessing special knowledge of the child’s circumstances.” Ill. Sup. Ct. R. 907(c)

What Happens If A Parent Uses Marijuana During Or After An Illinois Divorce?

Marijuana use is not going to affect a divorce or a parent’s parenting time with their children…unless there is a hearing regarding their marijuana use.

“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 . . . (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 an Illinois divorce court believes that marijuana use is negatively impacting a child, the marijuana user’s parenting time will be limited and/or the parent will be forbidden from using marijuana during specified time.

If marijuana use is an issue in your divorce case, you will need to either emphasize the power marijuana holds over the marijuana user or minimize what the Illinois legislature has recognized is a relatively harmless recreational drug. To learn more about how to do either, please contact my Chicago, Illinois family law firm to speak with an experienced Chicago divorce lawyer.