My Spouse Has Been Spending Recklessly; Can I Get Any of That Money Back in My Divorce?

According to almost every study and relationship expert, money is the most common point of contention between married spouses. Perhaps it should come as no surprise, then, that disagreements over money are among the leading causes of divorce in the United States. In fact, many surveys suggest that financial issues kill more marriages than even infidelity .

One could certainly argue that disagreements over money are often a symptom of much deeper problems in a marriage , and there is some truth to this idea if you think about it. After all, how a person spends or saves is a reflection of that person’s values and priorities. Spouses with different opinions about money, therefore, are likely to have very different values and priorities—which can easily spell disaster for a marriage .

Disputes over money can—and often do—continue well into the divorce process. During a divorce , however, such disagreements involve more than cash. It is not uncommon for divorcing spouses to dig their heels in and fight bitterly over the entire marital estate, which includes money, furniture, real estate, and any other assets that the couple acquired during their marriage . Things can get especially heated when one spouse is accused of reckless spending. If you believe that your spouse wasted a substantial portion of your marital property, you may be able to reclaim some of that money in your divorce.

Equitable Distribution in an Illinois Divorce

To understand how you might get some of the wasted money back, you must first understand how marital assets are divided during a divorce in Illinois. According to the Illinois Marriage and Dissolution of Marriage Act (IMDMA), a couple’s marital property must be divided in a manner that is equitable and just. This concept is known as “equitable distribution.”

It is important to realize that the law promises each spouse an equitable share of the marital estate, not an equal share. Equal would mean simply splitting the value of the marital estate in half and giving each spouse the same amount. Equitable, on the other hand, means that each spouse will receive a fair portion of the marital property based on a thorough consideration of the circumstances of the marriage and divorce.

When dividing marital property in a divorce, Illinois courts are required by law to take many factors into account, including:

1. Each spouse’s contribution to the value of the marital estate

2. Each spouse’s age, health, and employability

3. Each spouse’s financial situation

4. Any obligations or rights stemming from a previous marriage

5. Parenting arrangements being made for the couple’s children

6. Whether spousal support is being ordered

7. Any valid agreement between the spouses, includingprenuptial and postnuptial agreements

8. The tax consequences of dividing the marital estate

The court must also consider any claims “dissipation” of marital property by either spouse. This is where reckless and wasteful spending comes into play.

What Is Dissipation?

The Illinois Supreme Court defines dissipation as “the use of marital property for the sole benefit of one of the spouses for a purpose unrelated to the marriage at a time that the marriage is undergoing an irretrievable breakdown.” Each element of that definition is important, beginning with the use of marital property. Over time, Illinois lawmakers have gone back and forth regarding the type of property that can be dissipated. For some years, the dissipation of non-marital assets could be considered as well, but the current statute specifies that dissipation must involve marital property.

The second element is the use or spending must have been for the sole benefit of one of the spouses for a purpose unrelated to the marriage. Reckless spending is not enough to qualify as dissipation. It must have been spending for one person’s benefit only and not related to the marriage. For example, if your spouse spent far too much money on gifts for you, you can be upset about the reckless spending, but this is not likely to be considered dissipation. However, if your spouse has a gambling addiction or spent thousands of dollars in hotels to facilitate an illicit affair, such spending is likely to be considered dissipation.

The final element is the timing of the spending. Specifically, the spending must have taken place while the marriage was “undergoing an irretrievable breakdown.” This one is a little harder to define, because it involves establishing a date after which the marriage was doomed. It is possible to establish such a date using hindsight, but it is still not easy to do. Whatever date you choose as the point where the marriage started breaking down, the IMDMA also limits how long you have to claim dissipation.

Specifically, once you know—or should have known, in the court’s opinion—about your spouse’s spending, you must bring the issue up within three years. Under no circumstances will the court consider a claim of dissipation that requires looking back more than five years before the date of the filing of the divorce petition. While this sounds confusing, it is simpler than it seems at first glance. If you allege that your marriage started breaking down ten years ago, you cannot claim dissipation for money that your spouse spent eight years ago.

What Are the Remedies for Dissipation?

If the court agrees with your assertion that your spouse dissipated marital property, the obvious question becomes: what will the court do about it? Put simply, your spouse will need to pay the dissipated money back to the marital estate. This means that the court must determine exactly how much was dissipated so that it can be paid back. In practice, however, it is much more likely that the court will subtract the value of the dissipated property from the portion of the marital estate that your spouse would otherwise receive. In essence, you would be able to reclaim what your spouse spent in the form of getting a larger share of the marital property in your divorce.

Speak With a Qualified Divorce Attorney

To learn more about how Illinois courts handle claims of dissipation during a divorce, contact an experienced Kane County family law attorney . We can provide the guidance you need in getting the favorable outcome you deserve in your divorce.