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In a Divorce Case, What is NOT Considered Dissipation of the Marital Estate?

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Categorized as Property Division

Last week, we discussed what constitutes dissipation of marital assets and/or the marital estate. We discussed that expenditures held to constitute dissipation are extraordinary expenses that clearly do not further common marital interests.

So what is NOT dissipation?

The following are considered NOT to be dissipation of the martial estate

  • Gift BoxGifts: No dissipation where a pattern of making gifts has been established, particularly where the complaining spouse has previously acquiesced in the gifts. In re Marriage of Hagshenas, 234 Ill. App. 3d 178, 195, 600 N.E.2d 437, 449 (2d Dist. 1992) (“The issue is not whether the spending is consistent with that engaged in prior to the breakdown but, rather, whether such spending was for the sole benefit of one of the spouses for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown.”)
  • Change in characteristic of asset: Dissipation should be confined to the situation where value is lost to the marital or non-marital estate resulting in the sole benefit to one spouse (or, in to the benefit of neither spouse, but without the knowledge or consent of one spouse). “Merely changing the species of the assets from stocks to cash or retiring debt is not dissipation.” In re Marriage of Hahin, 266 Ill. App. 3d 168, 172, 644 N.E.2d 4, 8 (2d Dist. 1994).
  • Transfers: A fraudulent transfer is not dissipation if the fraudulently transferred asset can be recovered for the marital or non-marital estate. If the asset cannot be recovered, and there is loss to the marital or non-marital estate, there is dissipation.
  • The following is not dissipation: sale of all stock and payment of tax to preserve the value of the marital estate; ceasing to practice medicine to care for children and devote time to day stock trading; maintenance of marital assets; transfer of one marital asset from another by purchasing marital assets and valuing them at cost; and usual and necessary living expenses for the family.  To constitute dissipation there must be waste. In re Marriage of Miller, 342 Ill. App. 3d 988, 796 N.E.2d 135 (5th Dist. 2003).

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