Tag Archives: dissolution of marriage

IL divorce lawyerPeople make mistakes and sometimes, that mistake is marrying the wrong person. When one or both people think getting married was a mistake, they often wonder if they can obtain an annulment instead of going through the complicated process of divorce. Couples are more inclined to think this when they have been married for a very short period of time.

Annulments are only available in very limited situations in Illinois. However, for couples that are ineligible for an annulment, there is another option that is sometimes a possibility. That is a joint simplified dissolution of marriage. So, what are the differences, and how does a couple qualify for either? Find out below.

Eligibility for an Annulment

The Illinois statutes do not actually refer to the word ‘annulment.’ Instead, the term ‘declaration of invalidity of marriage is used. To declare a marriage invalid is to say that it is void and essentially makes it as though the marriage never happened. Declaring a marriage invalid is only done under certain circumstances, which include:

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Hinsdale divorce lawyers, dissipation of marital assets, Illinois divorce lawsOf these examples, which one reflects a dissipation of marital assets in your Illinois divorce?

  1. A spouse who gambles away marital monies during your marriage.
  2. A spouse who gifts money or assets to another person during your marriage.
  3. A spouse who hides or transfers assets during your marriage for purpose of avoiding splitting those assets with you in anticipation of your Illinois divorce.
The answer is any or all of these three examples may be a dissipation of marital assets.
What Defines When a Dissipation of Marital Assets Occurs in a Marriage?
Dissipation of marital assets occurs under Illinois law when one spouse uses money or assets for purposes unrelated to the marriage when the marriage has "irretrievably or irreconcilably broken."
A. Marriage undergoing in reconcilable breakdown: For a dissipation of marital assets to occur, the marriage must be undergoing an "irreconcilable breakdown" for money or assets to be dissipated. It is not necessary that the breakdown of the marriage be complete. This makes sense since most marriages don't breakdown at a single moment in time but most commonly over a period of time- months or even years.
B. Use of money or assets for a purpose unrelated to the marriage: The second element is that money or assets must be expended by a spouse for a purpose unrelated to the marriage. Sometimes this is not easy to determine. The most obvious example of dissipation may be that of a spouse who gambles away marital monies during the marriage breakdown. However, if a husband and wife gamble together while the marriage is breaking down, the losses by gambling are most likely not a dissipation.
Gifts of Money or Assets to Another Person
If your spouse gives money or assets to another person, then this may be a dissipation if the marriage is undergoing an irreconcilable breakdown. For example, gifts to your spouse's boyfriend or girlfriend may well be dissipation. However, gifts to your children or parents, if not excessive, are probably not a dissipation.
Spouse Who Hides or Transfers Assets During Your Marriage
A spouse who hides or transfers assets during your marriage for the purpose of avoiding splitting those assets with you in anticipation of your Illinois divorce may indeed be guilty of dissipation.
Hence, it is very important to start the discovery process as early as possible in an Illinois divorce case to obtain the spending records from your spouse or to obtain them by serving subpoenas upon banks, stock companies or others. But in this example, "timing" may be everything.
Under the new changes to the Illinois Divorce Law, effective January 1, 2016 there are restrictions on making a claim for dissipation based upon "timing." Dissipation must have occurred prior to five years and the filing of a Petition for Dissolution of Marriage or three years after a spouse who claims dissipation knew or should have known that dissipation occurred.
Written Notice Must be Given to the Dissipating Spouse Describing the Dissipation Once the Divorce Case is Filed
Additionally, upon filing a divorce case, the spouse claiming dissipation must serve written notice upon the spouse committing dissipation. The written notice must state the date or period of time during which the marriage began undergoing an irretrievable breakdown, an identification of the property dissipated, and a date or period of time when the dissipation occurred.
The January 1, 2016 changes to Illinois divorce law on dissipation now require that the spouse claiming dissipation only file a certificate of service of notice of intent to claim dissipation with the clerk of the Circuit Court where the case is filed, but the law does not require that the full description of the dissipation be set forth in the notice. Also, dissipation after 2015 applies only to marital property and not to non-marital property unlike prior law.
How Difficult is it for Me to Prove That My Spouse Dissipated Marital Assets in My Illinois Divorce?
Once the spending spouse or spender has been served with the written notice of your dissipation claim, the burden of proof shifts to the spender to justify that the assets or monies spent were free from dissipation. In addition, the spending spouse is held to a higher standard of proof to justify the spending.
You spouse must show by "clear and convincing evidence"—proof that the spending was proper. Clear and convincing proof means that degree of proof considering all of the evidence in the case, produces the firm and abiding belief that it is highly probable that the explanation relied upon by the spender is true. For example, a spending spouse's explanation that money was spent on "living expenses" or "support for the family over time" is not enough proof to avoid the claim of dissipation.
What Happens to a Spouse Who Has Been Found Guilty of Dissipation and in Illinois Divorce Case?
If your spouse has found to have dissipated assets in Illinois under the rules as described in this article, then your spouse must reimburse the marital estate for all of the money spent or assets hidden. So, for example, if the court finds that your spouse dissipated $100,000, the money would be treated as though it was still there and you would receive your 50 percent, or perhaps more, from the other assets in the case. Or, alternatively, your spouse could be ordered to pay the money back to you.
So what do we learn from all of this? First, if you know that you are going through divorce and you suspect that your spouse may be dissipating assets, then you need to make your claim early enough so that is not barred by the three year or five year cutoff dates described above. If you think you are going to the wrongfully accused of dissipation, then the key is to keep meticulous records of spending as well as assets.
In most cases where dissipation occurs, the amount of dissipation may be a tremendous bargaining chip. In my experience of more than 35 years of dealing with dissipation in Illinois divorces, the issue of dissipation comes up frequently. What is new is that you have to be careful to meet timing requirements so that you do not let dissipation go by because you think you may reconcile.
Do not forget that even if your spouse gambled away all of your life savings, if it happened more than five years before you filed your divorce, you do not get any credit at all, or reimbursement, because there is no dissipation.
I recently had a case where my client came in three times intending to file her divorce case and each time reconciled with her husband. There is nothing wrong with that, but her husband happened to be a compulsive gambler. By the time the third case started there were no assets at all to divide and to claim dissipation was too late.
Hence, if you think there has been dissipation you have two options: file your divorce case within the time periods described above and make a claim of dissipation, or try to have your spouse sign a post nuptial agreement describing the dissipation and agree to pay your share back to you even if the time is gone.
750 ILCS 5/503(d)(2)
(2) the dissipation by each party of the marital property, provided that a party's claim of dissipation is subject to the following conditions: (I) a notice of intent to claim dissipation shall 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 shall contain, at a minimum, a date or period of time during which the marriage began undergoing an irretrievable breakdown, an identification of the property dissipated, and a date or period of time during which the dissipation occurred; (iii) a certificate or service of the notice of intent to claim dissipation shall be filed with the clerk of the court and be served pursuant to applicable rules; (iv) no dissipation shall be deemed to have occurred prior to 3 years after the party claiming dissipation knew or should have known of the dissipation, but in no event prior to 5 years before the filing of the petition for dissolution of marriage, 750 ILCS 5/503.
Speak with a Compassionate Illinois Family Law Attorney Today
If you are dealing with legal problems and would like to speak with a skilled Hinsdale divorce attorney, please call 630-920-8855. Our skilled team at the Law Office of Martoccio & Martoccio understand the challenges involved in the dissolution of a marriage and we are prepared to help you today.

life-after-divorceAccording to a recent report published by the United States Census Bureau, marriage is alive and well as 55 percent of all Americans have been married at least once in stark comparison to the 30 percent who have declined to walk down the aisle. Although these statistics prove somewhat promising, the findings of the number, timing and duration of marriages and divorces, supported by data pulled from the Survey of Income and Program Participation, it remains evident that America still grapples with one of the highest divorce rates in the world.

Still fluctuating at a 50 percent divorce rate, it is estimated that as the trend continually rises, American couples experiencing a divorce during their lifetime may even surpass the current 50 percent mark. No matter the statistics, divorce is never easy. Even for those looking forward to the dissolution of marriage, divorce results not only in a legal expiration of a civil contract but the loss of a partnership.

For many, the question of how to handle the myriad of emotions and perhaps the onset of depression and loneliness, there are ways to survive and thrive following even the most challenging of divorces.

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dissolution of marriage, divorce judgment, divorce tips, DuPage County divorce lawyer, marriage dissolution, retirement account, Judgment for Dissolution of MarriageAirline pilots have checklists to make sure all that is needed for flight is either available or completed. For instance, pilots check that the landing gear is down and whether or not they have enough gas.*

The same should be true in regards to the finalization of your Judgment for Dissolution of Marriage and Marital Settlement Agreement. Hence, if you are going through a divorce, it is vital to check that your Judgment for Dissolution of Marriage is complete.

Checklist for your Judgment for Dissolution of Marriage

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Originally, Illinois was a grounds state. The petitioner had to plead and prove certain specific acts by the respondent in order to obtain a divorce – which is now called a dissolution of marriage.

The grounds that were set forth in the law (statute) in Illinois were mental cruelty, physical cruelty, impotency, desertion, habitual drunkenness or use of addictive drugs for more than two years, attempting the life of your spouse by poison or other means, showing malice, conviction of a felony or infamous crime, or infecting a spouse with a sexually transmitted disease. In Illinois these grounds still exist today.

In the past, the grounds that were most commonly used were “mental cruelty," mostly because those grounds were thought by divorce lawyers to be the least offensive to the other spouse.

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