Pursuing a Dissipation Claim against Your Spouse in a Divorce Proceeding

 Posted on March 10,2015 in Divorce

In 2012, an Illinois appellate court considered a dissipation case called In re Marriage of Berberet. Dissipation occurs when one or both spouses waste marital assets to prevent the other spouse from receiving those assets during a divorce. Under Illinois law, dissipation refers to a person’s use of marital property for his or her sole benefit for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown.

Berberet involved several issues related to dissipation. For example, the wife claimed dissipation when the husband took a trip with their children during the divorce proceedings, in addition to a solo hunting trip and a trip to Las Vegas. The court found that these trips did not constitute dissipation because they were not unusual or inconsistent with the lifestyle established during the marriage. In fact, the husband had taken similar trips in the past, and the wife had also taken similar trips with the children.

Berberet offers another example of a baseless dissipation claim. The wife also claimed dissipation when a vehicle the husband purchased during the divorce proceedings depreciated. He purchased the truck for $44,000, but at trial the court valued the vehicle at $10,000 less. The court held that the depreciation did not constitute dissipation because nothing in the evidence suggested that he paid an excessive price of took actions that caused the drop in value.

The Dissipation Claim

The party accused of dissipating marital assets generally has the burden of proving that the dissipation did not take place. However, he or she might be able to defeat the claim if it does not meet statutory requirements. For example, Illinois law bars dissipation claims when the alleged dissipation occurred more than five years before filing the divorce petition or three years after the party claiming dissipation knew or should have known about the waste.

If the dissipation claim is valid, the court will compensate the wronged spouse by offsetting the wasted assets against the property awarded to the dissipater in the divorce. Successful dissipation claims might involve spouses who wasted marital assets to purchase gifts for a boyfriend or girlfriend or who spent excessive amounts on gambling, alcohol or drugs.

The spouse pursuing a dissipation claim must file a notice of intent either 60 days before the trial begins or 30 days after discovery ends, depending on which date comes later. The notice must specify what property was dissipated and when, as well as when the irreconcilable breakdown occurred. Dissipation claims not filed within this time period are waived.

Our experienced Kane County divorce attorneys can help you file a dissipation claim or defend a claim filed against you. Contact us today for a consultation. We can assist those in the St. Charles area.