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Geneva dissipation of assets attorney

When a married couple plans on getting divorced, the last thing they may feel like doing is cooperating with each other. Even though they might not be on the best of terms, communicating and working together may be the best tactic to take for everyone involved. Even Illinois courts urge couples to try to work together with their attorneys to make decisions about their divorce. If a couple is unwilling or unable to compromise or come to a resolution, the court will have to intervene and make decisions for the couple based on Illinois law. Asset division can be tricky, and the exact laws that apply to this situation might be different from what most people think.

The Division of Assets Is Not Always 50/50

Many people think that the asset division process is simple and that each spouse will get exactly half of everything they own together. While this may be true in some states, Illinois practices what is called “equitable division.” This means that each spouse will receive a portion of the marital estate that is considered fair and just. To achieve an equitable division, the judge will look at a variety of factors to determine what each spouse should receive. Some of these factors include each spouse's income-earning potential and whether or not one parent gave up a career to stay home and raise children. In addition, the parent who is allocated the majority of the parental responsibilities may receive the marital home, since the children will reside there most of the time.  

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b2ap3_thumbnail_Batavia-divorce-lawyer1.jpg-min1.jpgThe legal concept of “dissipation” refers to wasteful spending that takes place near the end of a couple’s marriage. When Illinois couples divorce, their marital estate is divided according to equitable distribution. When one spouse’s wasteful or reckless spending decreases the value of the marital estate prior to divorce, a dissipation claim can help the other spouse regain the value of the lost or wasted property. Many types of irresponsible spending can be considered dissipative, including a spouse who spends money on an addiction or substance abuse problem. Read on to learn about when a spouse’s addiction can contribute to dissipation and what to do if you wish to file a dissipation claim.

Defining Dissipation in Illinois Law

Illinois statutes and case law define dissipation as the use of marital assets “for the sole benefit of one of the spouses for a purpose unrelated to the marriage” when the marriage is nearing divorce. Put another way, dissipative spending occurs when a spouse who is getting divorced uses marital funds or property in a way that only benefits him or her. The reckless spending must take place when the marriage is undergoing an “irretrievable breakdown” in order to meet the legal definition of dissipation. Generally, a marriage is considered to be undergoing a breakdown when the couple is no longer attempting to work out their issues or salvage the marriage.

Dissipative Spending Can Include Funds Lost to an Addiction

There are many types of irresponsible spending that can constitute dissipation. Money spent by a spouse on gifts for a secret lover may be considered dissipative. Funds spent on a gambling addiction or compulsive shopping problem may also be an example of dissipation. Substance abuse and alcoholism can also fall under this definition. If you bring a claim of dissipation against your spouse, you must file a notice with the court identifying the following information:

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Dupage County asset dissipation lawyerIn a perfect world, couples who decide to end their marriage would do so amicably and without any ill feelings. Unfortunately, we do not live in a perfect world, and divorcing couples are often much less than amicable. In some divorces, feelings of anger, resentment, greed, and spite are driving factors in decisions made by one or both spouses. In cases such as these, it is not uncommon for one spouse to do anything he or she can to keep the other spouse from receiving his or her fair share of the marital estate. The most common way of doing this is to waste the marital assets, also known as “dissipation.”

How Is Dissipation Defined in Illinois?

According to the Illinois Supreme Court, dissipation refers to the “use of marital property for the sole benefit of one of the spouses for a purpose unrelated to the marriage at a time the marriage is undergoing an irretrievable breakdown.” In other words, dissipation occurs when one spouse wastes, destroys, or spends marital property during the breakdown of the marriage for the purpose of depriving the other spouse of the property.

Examples of dissipation of marital property can include:

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dissipation, DuPage County divorce lawyersDuring a divorce, it is not uncommon for spouses to make all sorts of accusations against one another. Some, as you might expect, are fairly reasonable while others may border on the completely outrageous. One of the most common allegations that tend to arise in a divorce case is that of dissipation. Dissipation refers to the wasteful spending, intentional destruction, or negligent devaluation of marital property and is a very serious charge.

Why Does Dissipation Matter?

In the course of a marriage, spouses have the freedom to do whatever they want their property. The can spend frivolously, save carefully, or find a balance somewhere in between. Divorce law in Illinois provides, however, that once the marriage has begun to irretrievably break down, how each spouse spends money becomes a matter of interest to the other spouse. This is because Illinois law requires that the marital property of a couple shall be divided equitably between the parties during the divorce. If one spouse wastes assets before the divorce can be finalized, he or she denies the other spouse the opportunity to receive a share of those assets.

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legal expenses, Aurora divorce attorneyIn many divorce cases, finances are a major cause of contention. Depending on the complexity of a couple’s circumstances, the divorce process itself can be very expensive. In addition, divorce requires the marital estate, including all marital assets and debts, to be allocated between the parties. When property division is left to the discretion of the court, Illinois law requires an equitable—not necessarily equal—allocation based on the consideration of a number of factors. These factors normally include the income and resources of each spouse, the contributions of each to the marital estate, and arrangements made for any children. The court must also consider claims of dissipation, or the inappropriate spending of marital assets by one spouse for purposes unrelated to the marriage. But are attorneys’ fees and other expenses of divorce considered “unrelated to the marriage?”

Unclear Statutory Guidance

The Illinois Marriage and Dissolution of Marriage Act (IMDMA) gives the court presiding over a divorce case the authority to order one spouse to contribute toward the payment of attorney fees and related expenses of the other party. The court also has the discretion to order the repayment of dissipated assets to the marital estate by the offending spouse. However, the possibility of considering attorney fees and other divorce expenses as dissipation may not seem to be clearly addressed in the law. Thus, the court may rely on precedents set in previous decisions in making its determination.

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dissipation, marital assets, DuPage County family law attorneyDespite the inherent difficulties, most couples headed for a divorce are able to maintain a reasonable level of civility and personal responsibility. In some cases, on the other hand, the divorcing parties may be prone to making decisions that can negatively impact the proceedings. From a financial perspective, this may include wasting or dissipating marital or personal assets, either out of spite or due to an attitude of apathy regarding the situation. Sadly, however, the emotional nature of divorce may also lead to accusations that are unfounded, so if your spouse has filed a groundless claim for dissipation, you will need to know how to protect yourself.

What is Dissipation?

Dissipation, according to the law, is the wasting or inappropriate spending of an asset during of subsequent to the irretrievable breakdown of a marriage. The problem with dissipating assets is that doing so can directly impact many of the financial considerations of the divorce process. Spousal maintenance, property distribution, and child support are all dependent upon the assets, resources, and income of the interested parties. Wasted assets are, if not addressed and repaid, may not be taken into account as required, potentially skewing the outcome.

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dissipation, Illinois law, DuPage County Family LawyerReceiving a foreclosure notice can be extremely frightening. The idea of losing your home may be overwhelming and confusing, as you try to figure out what to do. The situation can be even more complication if you were unaware of the danger, especially in relationship to a divorce situation. You trusted you spouse to continue making the mortgage payments until the divorce was finalized, and now you find out he did not. While it may not provide immediate relief, you may have some recourse available in the form of a dissipation claim, which can help you recoup some of the value lost by your spouse’s action or inaction.

Dissipation Explained

When a marriage has begun to irreparably break down, both spouses must take care not to spend or devalue resources in such a way that the other would be affected during the divorce process. This is known as dissipation, and includes both marital and non-marital property. Reckless spending on purposes unrelated to the marriages, unreasonable gifts, and allowing real estate to fall into disrepair or foreclosure are all considered types of dissipation. The dissipation of marital assets is understood to have a direct impact on the division of property process, while dissipating non-marital assets affects a spouse’s personal resources, a consideration for child support, spousal maintenance, and other proceedings.

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marital estate, divorce negotiations, Illinois divorce attorney,The division of marital assets during divorce can be one of the most emotionally and fiscally challenging steps of the divorce process. Not only is the division of marital assets challenging because most individuals will have to undergo serious lifestyle changes to be able to carry on living in the same way that he or she was able to with a partner, but also because dividing marital assets can be the final tangible indicator that the marriage is truly over. And yet one aspect of marital asset division that makes the process even more complicated is if one partner engages in dissipation of marital assets, either before or during the divorce process.

According to the Journal of the American Academy of Matrimonial Lawyers (AAML), “dissipation in its simplest form occurs when a party conceals, conveys, or wastes marital assets during the dissolution process or in anticipation of divorce.” This can include trips or dates with a new boyfriend or girlfriend, unnecessarily risky investments or money spent on prostitution, alcoholism, or gambling. In Illinois the definition is a bit more defined. In Illinois, if either partner engages in reckless financial behavior, or activity perceived as beneficial only to one of the spouses for any reason unrelated to the marriage while the marriage is undergoing an irreconcilable breakdown, this can be considered dissipation as well. After Illinois redefined dissipation to include this type of behavior, many other states followed suit.

If you suspect that your soon-to-be-ex-spouse is endangering your financial future by engaging in dissipation, you will need to file a specific case in court. If this type of case is filed, the charged spouse must be able to prove, through clear and convincing evidence, that the funds were in fact spent in a manner that benefited both spouses. There is not a statue of limitations as to when a person can file a dissipation suite in Illinois, but for it to be the most resonant the case should be filed as soon as possible, and the charged spouse should not be blindsided with the charge.

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The Law Office of Matthew M. Williams, P.C.

630-409-8184

1444 North Farnsworth Avenue, Suite 307, Aurora, IL 60505

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