In sum, a spending spouse dissipates assets when the spending is for the sole benefit of the spender for a purpose unrelated to the marriage at a time when the marriage is undergoing an irretrievable breakdown.
As a spouse, you have every right to know exactly how your spouse has spent and is spending money. You need to watch for evidence of possible gambling expenses, or spending on a paramour, or for drugs, alcohol, or expenses wholly personal to the spender.
I have been the attorney in cases in which the dissipation amounted to six figures. In one case, the amount of dissipation soared to seven figures due in part to the purchase of a Lamborghini for a paramour.
The amount of dissipation can constitute a very large bargaining chip in a divorce case. Once the amount of dissipation is established, the total amount (already spent) is logged in on the spender’s side of the asset ledger, and the spender gets that much less of the available assets. They have not only spent money from what would have been his or her share of the assets, the spender has used money that would be earmarked as assets for the other party.
Illinois Law mandates that written claims for dissipation of assets must be filed within 30 days of the close of discovery in the case or 60 days prior to the trial date, whichever is later. The claim must be made in writing, and must, as best as possible, give the date assets were dissipated, the amount, and, if possible, what the spending was about. That makes it critical to start the discovery process as soon as possible to gain the spender’s records, or to allow time to subpoena them.
Once the spender is served with a dissipation claim, it is incumbent on the spender to prove that each item is not dissipation by clear and convincing evidence. Clear and convincing evidence means that degree of proof which, considering all of the evidence in the case, produces the firm and abiding belief that it is highly probably that the proposition on which the spender has the burden of proof is true.
Section 503(d)(2) does provide that no dissipation shall be deemed to have occurred prior to 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 a petition to dissolve the marriage.
The law mandates that we very carefully gather spending records in divorce litigation and make certain that we analyze the records carefully.