In determining how to divide property in Illinois divorce cases, judges are governed by 750 ILCS 5/503(d), which sets forth a number of factors that affect how marital property can be distributed. The second of these factors that the Court may consider is the dissipation of marital property by either party. Illinois appellate courts have defined “dissipation” as the use of marital property for the exclusive benefit of one spouse for a purpose unrelated to the marriage at a time when the marriage is experiencing an irreconcilable breakdown. A common form of dissipation is to spend marital assets on a new girlfriend or boyfriend while you are still married.

In the past, dissipation claims in Illinois were often used as a form of leverage to obtain a more favorable settlement. When a divorce case went to trial, many divorce attorneys filed multiple claims of dissipation as a method of increasing their claims on the marital estate. This form of litigation had the effect of creating an enormous amount of work for each side in the days and weeks leading up to trial. Often times, the dollar amount of dissipation claimed would be dwarfed by the legal fees required to defend against the claims.

Fortunately, the Illinois legislature recently amended the statute governing property distribution (750 ILCS 5/503) regarding the making of dissipation claims. There are now specific requirements and deadlines that must be put in place to make a dissipation claim. Section 503(d)(2) of the Illinois Marriage and Dissolution of Marriage Law now states the following:

(2) dissipation by each party of marital or non-marital property, provided that one party’s claim for dissipation is subject to the following conditions:

(i) notice of intent to claim dissipation will be given no later than 60 days before trial or 30 days after discovery closes, whichever is later;

(ii) the notice of intent to claim dissipation must contain, at a minimum, a date or period of time during which the marriage began to suffer an irreparable breakdown, an identification of the assets dissipated, and a date or period of time during which which the dissipation occurred;

(iii) the notice of intent to claim dissipation will be filed with the clerk of court and served in accordance with applicable regulations;

(iv) no dissipation shall be deemed to have occurred earlier than 5 years before the petition for dissolution of marriage was filed, or 3 years after the party claiming the dissipation knew or should have known of the dissipation;

Since the law changed, Illinois attorneys and parties planning to file a dissipation claim now have a deadline by which they must file a notice of intent to claim dissipation instead of waiting until trial day. The notice must also give a description of the assets dissipated, when the marriage broke up, when the assets were dissipated, and must be filed with the Court. Finally, neither party can file a claim of dissipation that occurred more than five years before the divorce was filed or three years after the claimed dissipation.

The new statute is expected to end the “trial by ambush” method of making dissipation claims while allowing legitimate dissipation claims to be brought in trial courts. In fact, there are many legitimate dissipation claims that need to be filed in court. Therefore, it is critical that your Illinois divorce attorney is knowledgeable about the amended statute and the technical methods by which a claim for dissipation must be made.