When a spouse catches his or her mate cheating they often want him or her to pay, literally. However, it’s a common misconception that the non-cheating spouse will be financially compensated as a result of the cheating spouse’s misconduct.
Illinois is a “no fault” state meaning that it is not necessary for the spouse seeking a divorce to prove that the other spouse is at fault for the breakdown of the marriage (e.g. for committing adultery, mental cruelty, or physical abuse). Illinois only requires that “irreconcilable differences have caused an irretrievable breakdown of the marriage and future efforts at reconciliation are impracticable and not in the best interest of the family.” As a result, adultery alone cannot be considered in the division of property or in awards of maintenance (alimony).
The only part of Illinois law that allows the Court to consider adultery in the division of property is where the cheating spouse has dissipated marital funds. Dissipation is the use of marital funds for the benefit of one spouse for a purpose unrelated to the marriage at the time the marriage is undergoing an irreconcilable breakdown. For example, if a husband bought a $5,000 ring for his girlfriend when the marriage was undergoing a breakdown, the wife may have a claim of dissipation. She would argue that the husband should reimburse her $5,000 in the final allocation of property.
Dissipation is not only limited to adultery. Courts have found dissipation where marital funds have been spent on alcohol and drugs, gambling, and transferring of funds to third-party accounts. Investigating these claims can be costly and there are time restraints on when they can be filed. These are important considerations to discuss with your lawyer if you think you may have a viable claim.
