Dissipation Claims in Illinois Divorce Cases

When determining how to divide property in Illinois divorce cases, judges are governed by 750 ILCS 5/503(d), which sets forth a number of factors that affect how marital property may be distributed. The second of these factors that the Court may consider is the dissipation of marital property by either party. Illinois appellate courts have defined “dissipation” as the use of marital property for the exclusive benefit of one spouse for a purpose unrelated to the marriage at a time when the marriage is experiencing an irreconcilable breakdown. A common form of dissipation is to spend marital property on a new girlfriend or boyfriend while you are still married.

In the past, dissipation claims in Illinois were often used as a form of leverage to obtain a more favorable settlement agreement. When a divorce case went to trial, many divorce lawyers filed multiple claims for dissipation as a method of increasing their claims on the marital estate. This form of litigation had the effect of creating an enormous amount of work for each side in the days and weeks leading up to trial. Many times, the dollar amount of the dissipation claimed would be dwarfed by the legal fees required to defend the claims.

Fortunately, the Illinois legislature recently amended the statute governing the distribution of property (750 ILCS 5/503) regarding the making of dissipation claims. There are now specific requirements and deadlines that must be met in order to make a dissipation claim. Section 503(d)(2) of the Illinois Marriage and Dissolution of Marriage Law now states the following:

(2) the dissipation by each party of the marital or non-marital property, provided that the dissipation claim of one of the parties is subject to the following conditions:

(i) notice of intent to claim dissipation will 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 must contain, at a minimum, a date or time period during which the marriage began to suffer an irreparable breakdown, an identification of the assets dissipated, and a date or time period during which which the dissipation occurred;

(iii) the notice of intent to claim dissipation will be filed with the court clerk and delivered in accordance with the applicable regulations;

(iv) no dissipation shall be deemed to have occurred earlier than 5 years prior to the filing of the application for dissolution of the marriage, or 3 years after the party claiming the dissipation knew or should have known of the dissipation;

Since the statute amendment, Illinois attorneys and parties planning to file a dissipation claim now have a deadline by which they must serve a notice of intent to claim dissipation instead of waiting until trial day. The notice must also give a description of the assets dissipated, when the marriage broke up, when the assets were dissipated, and must be filed with the Court. Finally, neither party can bring a claim for dissipation that occurred more than five years before the divorce was filed or three years after the claimed dissipation.

The new statute is expected to end the “trial by ambush” method of making dissipation claims while allowing legitimate dissipation claims to be brought in trial courts. In fact, there are many legitimate dissipation claims that must be brought to court. Therefore, it is critical that your Illinois divorce lawyer is aware of the amended statute and the technical methods by which a claim for dissipation must be made.