While adultery is a viable ground for divorce in Illinois, courts cannot consider extra-marital affairs when awarding alimony, or maintenance. (Remember that maintenance is what one spouse pays to the other to ensure that divorce does not impoverish a lower-earning spouse.) However, adultery can affect the division of marital property, particularly if your spouse brings a dissipation claim.
The Illinois Marriage and Dissolution of Marriage Act defines dissipation as a person’s use of marital property for his or her sole benefit for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown. One common dissipation example arises when a spouse spends marital assets on a boyfriend or girlfriend, such as buying gifts or going on vacation. If the court finds that a spouse dissipated marital property, it may compensate the wronged spouse. The court may offset the dissipated assets against the total property awarded to the wasteful spouse in the divorce settlement.
Note that dissipation is not limited to money; it also includes destruction of or failure to maintain marital property. Some dissipation examples are:
- Excessive spending on gambling, alcohol or drugs;
- Allowing the family home or other marital real estate to fall into foreclosure; and
- Negligently leaving valuable marital property in a place where it can easily be stolen.
The alleged dissipater has the burden of proving that the dissipation did not occur. One defense is showing that the other spouse consented to the use of marital assets.
Baseless Dissipation Claims
Some dissipation claims have no basis in law. For example, if the accused demonstrates that the spending was consistent with the lifestyle established during the marriage then the court will not accept the dissipation claim. This issue arose in an Illinois case involving a spouse who took three trips during his divorce proceedings. He took a vacation with his children and two personal vacations, one to Las Vegas and one to go hunting. The wife brought a dissipation claim, but the court held that these trips were not inconsistent with the couple’s lifestyle. In fact, he had taken similar trips in the past.
Another example of a baseless dissipation claim centers on a financial investment using marital property, if the investment stood a reasonable chance of success. This is true even if the investment ultimately fails.
The dissipation claim will be waived if it is not brought within the statutory timeframe. The notice of intent must be filed 60 days before the trial begins or 30 days after the discovery period ends – whichever date is later. Moreover, the notice of intent must specify the property that was allegedly dissipated, when that property was dissipated and when the marriage irreconcilably broke down. If the spouse seeking dissipation fails to comply with these requirements then it is likely the claim will not succeed.
Contact one of our divorce attorneys at the Law Office of Elizabeth J. Chacko, P.C. today if your spouse brings a dissipation claim against you or if you want to bring a dissipation claim against your spouse. We can assist those in Wheaton, Carol Stream and Lombard.