Recently, the Illinois Appellate court addressed the issue of the date used in determining dissipation as raised by the divorce case In Re Marriage of Sinha. (In re MARRIAGE OF JYOTI SINHA and MUKESHA K. SINHA, 2021 IL App (2d) 191129, No. 2-19-1129) The court found when determining dissipation, you use the date when the marriage began breaking down, and not when the breakdown was complete.
Jyoti and Mukesha were married in September 2004. Jyoti filed her first petition for dissolution of marriage in 2013, which she asked the court to dismiss in January 2014. In May 2014, she and her husband went on a couple of trips together and traveled to Turkey and Italy. In June 2014, they bought a home. In December 2014, a son was born.
In December 2015, Jyoti filed her second petition for dissolution of marriage. In June 2016, the court entered a parenting plan, awarding Joyti the majority of parenting time with the parties’ son.
During their trial, Mukesha complained that Jyoti had transferred $540,000 to her parents in India. He claimed it was dissipation. Monies that are used for a purpose not related to the marriage during a time when the marriage is broken down is called dissipation by the court. Mukesha claimed that Jyoti had dissipation the $540,000.00. The trial court ruled that she had not, and Mukesha took that issue up on appeal.
Dissipation Claimed During the Trial
During their divorce trial, Mukesha filed a motion seeking the court to order his wife to return the $540,000 that she sent her parents in India from the parties’ E-Trade account. The court ordered Joyti to transfer those funds back from the Indian accounts she’d transferred them to and not to transfer any additional funds to India.
Joyti did not comply, which led Mukesha to file yet another motion. The court issued a “rule to show cause” regarding her failure to transfer the money back. The court held Joyti in indirect civil contempt and stated that unless she purged herself of the contempt order by tendering an accounting by January 4, 2017, she would go to jail.
Mukesha next filed a notice of dissipation claiming that his wife dissipated the $540,000.00. The court defined dissipation as the use of marital property for the sole benefit of one of the spouses for a purpose unrelated to the marriage at a time that the marriage is undergoing an irreconcilable breakdown. For Joyti to have dissipated the money, even if Mukesha did not approve of the transfer, she would have needed to spend the money during a time that the marriage had broken down. Mukeska claimed that on September 11, 2016, that Joyti transferred the money, and it was not for a purpose related to the marriage. But the real question is, when did the marriage break down, and was it broken down when Joyti transferred the money to her parents on September 11, 2016? Joyti had filed her second (2nd) petition for dissolution the December before, so the timing seems right to allege that the party’s marriage had broken down on September 11, 2016.
Wife Testified at Trial About the Money
At trial, Joyti testified that her marriage had broken down in 2012. She testified that in September 2015, she transferred $540,000 from an E-Trade account to her parents in India. Before the parties’ marriage, the petitioner had about $80,000 in different accounts in India. In 2005, after the parties married, she transferred that $80,000 she’d had before the marriage to the parties’ E-trade account. Because that account was subject to gains or losses in a given year, she estimated its nonmarital value in 2015 was $150,000, arguing that there was a gain of six or seven percent per year. However, she lacked any hard evidence to prove what she was saying.
Later, Joyti transferred $18,100 to her husband’s attorney’s escrow account. She returned no other money out of the $540,000.00 she had transferred. At trial, Joyti explained that out of the $540,000, Joyti paid her parents $150,000 for wedding expenses, $122,000 “for my education that my parents paid,” and about $100,000 for her father’s cancer treatments.
The Court Evaluates the Breakdown Period
Mukeska testified that the parties attended marriage counseling in 2012, and that the counseling was helpful, but in the spring of 2013, he was charged with domestic battery against Joyti. In 2013, they both filed for divorce but then withdrew their petitions. Mukesha testified that they had worked things out and they were back together as a couple. They tried to have a baby and eventually did. In August 2015, they began having difficulties again in their marriage.
On March 22, 2018, the court issued a written judgment stating it could not determine the date on which the marriage was irretrievably broken. As such, the court determined that the parties’ marriage suffered an irreconcilable breakdown” on December 4, 2015, the date Joyti filed her petition for dissolution of marriage. Since the breakdown occurred on December 4, 2015, and Joyti transferred the money in September 2015, there was no dissipation.
Husband Appeals the Court’s Ruling on the Dissipation Issue
Mukeska argued on appeal that the marriage began undergoing an irreconcilable breakdown in August 2015, not December 2015.
The appellate court stated that dissipation 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. The court rejected the notion that dissipation occurs only after an irreconcilable breakdown, rather dissipation is calculated from when the parties’ marriage began undergoing an irreconcilable breakdown.
The Appellate Court Overturns the Trial Court’s Decision
The Appellate Court reversed the trial court’s ruling, stating that the court failed to apply the correct legal standard. The court calculated dissipation, not from when the parties’ marriage began undergoing an irreconcilable breakdown, but rather from when the parties’ marriage had completed the process of breaking down. This is apparent from the court’s language in its letter order stating:
[Respondent] identifies the summer of 2015 as the date of irreconcilable breakdown but identifies no facts or reasons why such a time period should be selected. In light of the ups and downs the parties experienced throughout their marriage, it is virtually impossible to establish a firm date of irreconcilable breakdown. The Court therefore is left to find that the date upon which the parties [’] marriage suffered irreconcilable breakdown was on the date that [petitioner] filed her Petition for Dissolution of Marriage or December 4, 2015.”
The Appellate Court found that the trial court’s decision was against the manifest weight of the evidence. The Appellate Court found that Mukeska provided ample testimony that the marriage began to irretrievably break down in the late summer of 2015. He testified that in August 2015 the parties began arguing and having difficulties over many issues, including money. The trial court’s finding that he had not identified any facts or reasons to support his contention that the marriage began undergoing irreconcilable differences in August 2015 was against the manifest weight of the evidence. The Appellate Court also noted that Joyti testified that the marriage broke down in 2012.
IN DETERMINING DISSIPATION, THE COURT SHOULD HAVE USED A DATE WHEN THE MARRIAGE BEGAN IRRECONCILABLE BREAKDOWN—NOT WHEN THE BREAKDOWN WAS COMPLETE
The Appellate court ruled that in determining dissipation, the court should have used a date when the marriage began irreconcilable breakdown—not when the breakdown was complete. Thus, the court erroneously determined dissipation. The court chose the date that Joyti filed her petition for dissolution of marriage, explaining that it was “impossible to establish a firm date of irreconcilable breakdown.” However, after considering the parties’ testimony, it is clear that their marriage began undergoing an irreconcilable breakdown, at the latest, in August 2015. In addition, it is uncontroverted that, on September 11, 2015, Joyti transferred the entirety of the parties’ E-Trade account, $540,000, to an account in India that was titled solely in her name, a date after which the breakdown of the marriage had clearly commenced.