Dissipation – Factors Illinois Divorce Courts may Consider in Determining when the Irreconcilable Breakdown of a Marriage Begins

What happens when a spouse goes to Las Vegas and blows $1,000,000? Can I ask the Court to charge my spouse with wasting money in my divorce case? That depends on several things, including whether or not the marriage was undergoing an irreconcilable breakdown at the time of the alleged expenditure.

Provided that certain statutory requirements are met, and provided that a prima facie case has been made by the alleging party, Illinois Courts are required to consider the dissipation of marital property by each party when equitably dividing marital property in a divorce action. 750 ILCS 5/503(d)(2). Dissipation, however, can only occur “at a time that the marriage is undergoing an irreconcilable breakdown”. In re Marriage of O’Neill (1990), 138 Ill.2d 487. Sometimes the million dollar question revolves around that determination.

The Illinois Supreme Court has defined 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 irreconcilable breakdown”. Id at 496-497 (emphasis added). The term “irreconcilable” is defined as “impossible to bring into friendly accord or understanding; hostile beyond the possibility of reconciliation”. In re Marriage of Romano, 2012 IL App (2d) 091339 (2012) at ¶91 and ¶93. The terms “irreconcilable” and “irretrievable” share similar definitions and Illinois Courts have used them interchangeably in analyzing dissipation. Id.

An irreconcilable breakdown is not a prolonged gradual process extending from the initial signs of trouble in a marriage until the actual breakdown itself; rather, the date of irreconcilable breakdown is the date by which it is apparent that a breakdown is inevitable. In re Marriage of McBride, 2013 IL App (1st) 112255 (2013), ¶46, (emphasis added); see also: In re Marriage of Romano at ¶87; and In re Marriage of Hazel, 219 Ill.App.3d 920, 921-922.

Illinois Courts define the date of irreconcilable breakdown in this way in order to avoid the overly burdensome task of examining every argument or conflict in a marriage from the moment the vows are exchanged to the date of divorce and because Courts cannot be charged with parsing the record to determine what action or argument started the exact date the breakdown begins. The Illinois legislature did not intend to make the Illinois Courts the auditors for every marriage that fails. In re Marriage of Hazel at 922; see also: In re Marriage of Romano at ¶87; and Cf. In re Marriage of Holthaus, 387 Ill.App.3d 367; and In re Marriage of McBride, 2013 IL App (1st) 112255 (2013) at ¶46.

Not every incident or conflict that occurs during a marriage signals that the marriage has begun to undergo an irreconcilable breakdown. In re Marriage of Romano at ¶91-92. Many couples experience problems during marriage; however, to establish dissipation, the marriage has to be undergoing an irreconcilable breakdown. Id. See also: In re Marriage of Zweig, 343 Ill.App.3d. 590, 598-99. The notion that any dispute during the course of a marriage that ultimately ends in divorce is enough to find that the marriage is undergoing an irreconcilable breakdown ignores human nature and the realities of life. In re Marriage of Romano at ¶87; see also In re Marriage of Hazel, supra.

So, how do Illinois Court’s make the important determination of when the irreconcilable breakdown of a marriage begins? The following is a non-exhaustive list of objective factors that Illinois Divorce Courts have used in making this determination (and thus when the clock may start ticking for possible dissipation claims):

1. When the parties physically separated (i.e., one party moves out of the marital residence and/or the parties separate within the marital residence).
2. When the parties stopped engaging in a sexual relationship.
3. When the parties stopped vacationing and/or traveling together.
4. When the parties stopped attempts at reconciliation (including any marriage counseling).
5. When the parties stopped sharing meals and/or communicating.
6. When the parties stopped dining out and/or attending social events together.
7. When the parties stopped contributing to household expenses.
8. When the parties stopped giving each other gifts for birthdays/holidays/special occasions.
9. When the parties discussed divorce.
10. When either of the parties consulted an attorney about divorce.
11. When either of the parties files for divorce.

Any alleged 750 ILCS 5/503 dissipation claims prior to the date of the irreconcilable breakdown are irrelevant and the Court may be requested to enter a directed finding related thereto at the close of a plaintiff’s case-in-chief under 735 ILCS 5/2-1110. Sometimes those directed findings further the interests of judicial economy and help preserve the marital estate consistent with the express policy of the Illinois Marriage and Dissolution of Marriage Act. 750 ILCS 5/102 (10).

1. In re Marriage of Romano; In re Marriage of McBride; In re Marriage of Holthaus; In re Marriage of Hazel; In re Marriage of O’Neill; and In re Marriage of Carter, 317 Ill.App.3d 546 (4th Dist. 2000).
2. In re Marriage of Holthaus; and In re Marriage of Hazel.
3. In re Marriage of Romano; and In re Marriage of Tabassum and Younis, 377 Ill.App.3d 761 (2nd Dist. 2007).
4. In re Marriage of Holthaus; In re Marriage of Hazel; In re Marriage of O’Neill; and In re Marriage of Tabassum and Younis.
5. In re Marriage of Holthaus; and In re Marriage of Carter.
6. In re Marriage of Romano; and In re Marriage of Tabassum and Younis.
7. In re Marriage of Carter.
8. In re Marriage of Romano.
9. In re Marriage of Hazel.
10. In re Marriage of Hazel.
11. In re Marriage of Holthaus; In re Marriage of Hazel; and In re Marriage of McBride.

J. Matthew Linstroth is an Associate with Family law firm in Chicago Katz & Stefani.