Dissipation: How to trace assets in a divorce.

Jonathan Merel

Dissipation in a legal context refers to one spouse’s use of marital funds for their sole purpose or gain and not to the benefit of the marriage. Dissipation is limited to the timeframe in which the marriage began to experience irretrievable breakdown resulting inevitably in divorce. Dissipation is commonly linked to extramarital affairs but is not inextricably associated with it. Any type of money transfer, purchase or spending spree that devalues the marital property can be constituted as dissipation if found to be done without consent or deliberately hidden from one’s spouse.

There are very specific guidelines on when an individual can file a motion of intent to claim dissipation. Illinois laws regarding dissipation have changed since January 1, 2013 so it is very important to consult a family law attorney in order to successfully navigate around this already challenging area to reap the most favorable outcome. A notice of intent to claim dissipation must first be filed and there are windows in place governing just how far back a claim can go. Generally speaking, the “breakdown of marriage” is limited to five years before filing a Petition for the Dissolution of Marriage or three years after the party claiming dissipation knew about the activity.

Dissipation can only occur during the irretrievable breakdown of the marriage, hence, it is quite often a source of much contention and difficult to isolate. Many people consider the breakdown of marriage to be once the divorce papers are filed, others believe it occurs once the couple becomes separated, and many feel it happens while the couple is still married. As a result of the ambiguity, it is important to thoroughly outline your evidence and present your case concretely to highlight your specific circumstance. Needless to say, a family law attorney with expertise in dissipation and asset tracing will be instrumental in identifying exactly when the marriage became irretrievable and marital property squandered.

Asset Tracing 101:

Once the proper paperwork has been filed with the courts, now it’s investigation time! Thankfully we live in a digital age where basically all transactions can be traced: credit card statements, bank records, employee paystubs, IRA’s, pensions, stocks, bonds, etc. However, in order to retrieve any of the aforementioned items, subpoenas and/or depositions must be issued first.   When all of necessary documents are in your and your attorney’s possession it is easier to identify if and when dissipation has occurred and to what extent. It is now possible to gauge what type of financial detriment was caused and if funds should be repaid. It is crucial to have the most composite financial picture in order to properly assess the remaining marital property and marital funds.

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