During a divorce, temptation can be high for either or both spouses to misconduct themselves, though they may not be aware it is misconduct. People have affairs and buy gifts for their lovers, or they try to hide assets they believe to be theirs (or believe they are entitled to). If you have reason to suspect that your spouse might be engaging in this type of behavior, you may be able to offset his or her misuse of marital assets by getting a larger share of what remains.
Dissipation of Marital Assets
Marital assets are fairly easy to define under Illinois law. With few exceptions, they are assets obtained either during your marriage or in anticipation of your marriage. Money can also be a marital asset if deposited in the marital checking account or otherwise used for a purpose benefiting your marriage, even if it comes from one person’s paycheck. Illinois recognizes dissipation as “the use of marital property for the sole benefit of one of the spouses for a purpose unrelated to the marriage” during a time in which the marriage is “irretrievably” breaking down.
This is contrary to public policy, as marital assets are intended to be used for the benefit of both spouses—though the benefit may end up being indirect. Thus, if your husband or wife has an affair during which they purchase expensive gifts for their lover with marital money, it fits the definition of dissipation. However, they need not account for every dollar in order for a court to find that no dissipation has occurred.
Misconduct May Not Be Punitive
Usually, the remedies for dissipation in Illinois are twofold, and courts will usually choose between them in terms of addressing the inequity rather than opting for both. Depending on the specific situation, the court will either order the dissipating spouse to repay the marital estate, or the court may simply choose to award the other spouse a larger share of the marital assets. In extreme cases, if you are able to discover the misuse of funds while it is still going on, you may be able to obtain a financial restraining order, which prohibits your spouse from “transferring, encumbering, concealing, or otherwise disposing of any property” unless in the normal course of business. Breaching such an order may mean contempt proceedings.
It is important to note, however, that while dissipation or other marital misconduct may be used to ensure that you receive your fair share of the marital estate, it may not be used as ammunition to argue in favor of punitive consequences. Illinois law explicitly states that marital property must be divided “without regard to marital misconduct.” In other words, while dissipation means you are entitled to redress, you are not entitled to punitive damages, so to speak.
Need Help Figuring Out Misuse of Assets?
While misuse of assets can happen to any couple, it can often take a trained eye to identify and address it. The knowledgeable Orland Park asset division attorneys at Kezy & Associates welcome the opportunity to sit down with you and to see if you have a case. Contact any of our three convenient office locations to set up an appointment today.