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Protecting Your Assets from Dissipation During Divorce

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By Jonathan Standeford

“My spouse is having an affair and has spent thousands of dollars on jewelry and lingerie.”

“I found out my spouse is gambling and has lost most of our life savings.”

Statements like these are frequently made by parties in a divorce or dissolution of marriage. Then the question becomes, “Can I recover the marital funds my spouse lost or spent?” The answer is — possibly. The attorneys at Birnbaum Gelfman Sharma & Arnoux, LLC can assist in determining how much can be recovered and have the legal knowledge to make the claim in court.

Dissipation is a term used to describe the improper use of marital assets before divorce. Illinois recognizes that dissipation occurs when property or assets (including financial accounts) are improperly used for the sole benefit of one spouse, for a purpose not related to the marriage, at a time when the marriage is undergoing its irretrievable breakdown.[1] As Illinois allows a claim of dissipation to be made against a spouse, the issue becomes discovering what has been dissipated and to what extent the dissipation can be recovered.

The main factor when pursuing dissipation is timing. Section 503(b)(2) sets forth minimum requirements and guidelines for pursuing a dissipation claim.

  • The notice of intent to claim dissipation is required no later than 60 days before trial or 30 days after the period for discovery to occur closes (whichever is later in time).
  • The statute requires that the notice of intent contains such information as when the marriage began its irretrievable breakdown, the property or asset that has been dissipated and the date or period the dissipation occurred.
  • Dissipation cannot be claimed if it occurred three or more years after the individual claiming dissipation knew or should have known about the dissipation, but not prior to five years before the filing of the petition for dissolution of marriage. Therefore, if the dissipation occurred six years before the filing of the petition, there would be no remedy for the dissipation.

Prompt investigation by an attorney through the discovery process in litigation can significantly promote a timely claim for dissipation against your spouse for either an increased division of the marital assets in your favor or an offset claiming the dissipation as an advance on your spouse’s portion of the marital estate.

However, dissipation is not always as clear as seeing a purchase from your husband at Tiffany & Co. when he has not given you jewelry since your wedding, or a receipt from a spa in another city or a gambling website. Sometimes dissipation is done in cash transactions to avoid the other spouse from being alerted of the potential dissipation.

An example of dissipation that may be unclear is the mismanagement of marital funds by way of day trading.[2] The petitioner in this appeal was awarded nearly $1 million. Another example is the intentional sabotage of a family business.[3] The petitioner of this appeal was awarded the business.

While no person wants to think their spouse would have an affair or dissipate marital assets, the reality is that it happens. Many times, the dissipation is not done with blatant disregard of being caught — such as using a joint credit card or bank account — but is rather done quietly with the hope it is not discovered.

As there is no single way that dissipation can occur, it is important to remain vigilant regarding cash withdrawals from accounts, newly opened credit card or bank accounts and unusual spending or debts. These can all be signs that one spouse is dissipating the marital estate for their own needs. Additionally, not all dissipation requires intentional action against a financial account, as an example, destruction or abandonment of property.

The attorneys at Birnbaum Gelfman Sharma & Arnoux, LLC are experienced in making claims regarding dissipation, reviewing documents for potential dissipation and recovering the most for their clients to ensure funds are not misused. If you are considering or currently undergoing a divorce, there are steps you can take to review for dissipation to protect yourself and your assets. Contact a divorce attorney at Birnbaum Gelfman Sharma & Arnoux, LLC today for assistance.

[1] See In re Marriage of O’Neill, 138 Ill.2d 487 https://casetext.com/case/in-re-marriage-of-oneill

[2] See Schneeweis v. Schneeweis , 404 Ill. Dec. 426, 55 N.E.3d 1280, 2016 Ill. App. 2d 140147 (Ill. App. Ct. 2016) https://casetext.com/case/schneeweis-v-schneeweis?

[3] See In re Marriage of Thomas , 239 Ill. App. 3d 992, 608 N.E.2d 585 (Ill. App. Ct. 1993) https://casetext.com/case/in-re-marriage-of-thomas-8?

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By Jonathan Standeford

Jonathan Standeford is a skilled litigator whose broad legal experience offers him the dynamic perspective he wields with every client. He regularly handles matters across Illinois regarding dissolutions of marriage, parentage, asset divisions, maintenance, child support, allocation of parental responsibilities and prenuptial/postnuptial agreements.

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By Birnbaum Gelfman Sharma & Arnoux, LLC | Posted on December 4, 2023