As family law attorneys, we often deal with issues regarding one party’s removal of funds from joint checking or retirement account, specifically for the purpose of spending the funds on his or her new boyfriend or girlfriend. If the withdrawal of funds occurred after the irretrievable breakdown of the marriage (such as the date of separation) and was used for a non-marital purpose, then this party has “dissipated” marital funds.
The specific acts that constitute dissipation depends on the facts of the case. The most common scenario of dissipation includes the spending of marital funds on a new boyfriend or girlfriend. Other expenses found to be dissipation include buying things for yourself which are not reasonable and necessary, such as expensive jewelry, expensive clothing, new cars. Dissipation can also include mismanagement of a family business, excessive expenditures on hobbies, expensive vacations, failing to pay mortgage payments, and gifts to relatives. In some situations, attorneys fees have been found to be dissipation. Reasonable living expenses are usually not considered dissipation. The courts will also look as to whether the dissipating party intended to hide, deplete or divert the marital assets, and whether the other spouse agreed or acquiesced in the expenditure.
Dissipation is not always financial. In one case, the Court found one party had committed dissipation when the wife destroyed family photographs. In re the marriage of Ferkel, 260 Ill. App. 3d 33, 632 N.E.2d 1133 (5th Dist. 1994). The court held that if the marital property [photographs] could not be restored, trial court should have determined damages and considered the issue in distribution of marital property.
One of the biggest issues with dissipation is timing. The rule is that any dissipation must occur after the “irretrievable breakdown of the marriage”. There is a plethora of cases regarding this issue alone. Irretrievable breakdown is NOT a prolonged gradual process extending from the initial signs of trouble in a marriage until actual breakdown itself; it is the time from the actual breakdown itself.
The courts have explained that allowing a spouse to charge the other with dissipation throughout the duration of the marriage would entail an accounting of all financial transactions during the marriage. See In re Marriage of Getautas, 189 Ill. App. 3d 148, 544 N.E.2d 1284 (2d Dist. 1989). Section 503(d)(2)(ii) an d(iv) of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) requires that the notice of intent to claim dissipation identify the date or period of time during which the marriage began undergoing an irretrievable breakdown, and also limits any dissipation to the period five years prior to filing the petition for dissolution, and three years after the party claiming dissipation knew or should’ve known of the dissipation.
If you feel that you have a claim for dissipation against your spouse, it is important that you inform your attorney immediately as there are deadlines as to when to file a Notice of Dissipation. Furthermore, your attorney will need to do some discovery to obtain proof of dissipation. If you can prove that your spouse has removed marital funds, the burden falls on your spouse to prove that he or she did not dissipate said funds.