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When Does Dissipation Start and The Impact of the 2016 Changes

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Categorized as Property Division

Dissipation is defined as the misuse of marital sources by one party towards non-marital expenses.  The big question in dissipation cases, however, is how far back one can go in their dissipation claim.  According to the 2013 amendments, a party could not ask for more than 2 years prior to the time the marriage began undergoing an irreconcilable breakdown.  Case law later defined said “breakdown” as the time after the marriage has irretrievably or irreconcilably broken down.  In re the Marriage of O’Neill, 138 Ill. 2d 4877 (1990).  This allowed parties to pick a starting point and limited the period of time one could seek dissipation.

Recent amendments to the Illinois Marriage and Dissolution of Marriage Act (IMDMA) changed the wording of the language in 750 ILCS 5/503 in regards to dissipation.  The new language now provides that one cannot claim dissipation for a period of more than 3 years after the party claiming dissipation knew or should have known of the dissipation, but in no event prior to 5  years before the filing of the petition for dissolution of marriage.  The statute also clarified that one cannot dissipate non-marital property.

However, the statute does not change current case law regarding the starting point of dissipation.  It simply extends the period of time that one could seek dissipation from 2 years after the breakdown to 3 years, but not prior to 5 years of the filing of the Petition for Dissolution of Marriage.  The statute was clearly trying to extend the period of time that one could seek dissipation but at the same time preventing abuse by parties whose marriage has been broken down for a significant period of time.  However, the law still remains that there cannot be any dissipation claims prior to the date that the parties’ marriage was irretrievably broken down. Thus, if the parties’ marriage broke down last year, they would only have one year of dissipation claim, regardless of any unauthorized expenses prior to that date.

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