In this article we explain how an affair affect an Illinois divorce case including:
- Grounds for divorce in Illinois
- How an Affair May Play a Role in the Division of Assets in an Illinois Divorce
- What is dissipation in an Illinois divorce case?
- What are examples of dissipation relevant to an affair in an Illinois divorce case?
- What happens if there is dissipation in my Illinois divorce case?
For a couple that is getting a divorce because one party had an affair, the non-cheating spouse often wonders how the affair plays a role in obtaining a divorce. In this article we will explain how the affair can be used in a divorce case and how an affair cannot be used in a divorce case.
Grounds for Divorce in Illinois
Prior to 2016, a party could claim adultery as the grounds for a divorce if one party was engaged in an affair. Since 2016 however, adultery can no longer be used as grounds for a divorce. In Illinois, the only grounds a party can use when they file for divorce is irreconcilable differences. “Irreconcilable differences” essentially means your marriage is dead and there’s no way to revive your marriage. The affair can be the reason for your divorce, but the legal “grounds” for the divorce is “irreconcilable differences.” See this blog for other changes that occurred in 2016: https://www.oflaherty-law.com/learn-about-law/changes-to-illinois-divorce-law-for-2016
How an Affair May Play a Role in the Division of Assets in an Illinois Divorce
Even though an affair isn’t grounds for divorce, that doesn’t mean the affair won’t play a role in your divorce. If marital property was used to support and further the affair, you might have a claim of dissipation.
What is dissipation in an Illinois divorce case?
Dissipation as defined by the Illinois Supreme Court is the “use of marital property for the sole benefit of one of the spouses for a purpose unrelated to the marriage at a time the marriage is undergoing an irretrievable breakdown.” What exactly does this mean?
Generally speaking, “marital property” is any property received during the marriage with a few exceptions (gifts, inheritances, property owned prior to the marriage, etc. are all non-marital property). This designation of “marital property” is regardless of who earned the money, who purchased the property, or whose name is on the title.
“For the sole benefit of one of the spouses for a purpose unrelated to the marriage” means the money spent was only helping one spouse. Money used to pay family expenses including paying the mortgage, car loan, utilities, family debts, children’s expenses, etc. will generally not be considered dissipation. Spending marital money when the parties are separated on reasonable, necessary living expenses is also not considered dissipation. If the parties are separated, continued expenditures that were normally made during the marriage without objection will generally not be considered dissipation.
“At a time the marriage is undergoing an irretrievable breakdown” means at a time your marriage is dying. Whether a marriage is undergoing an “irretrievable breakdown” is very fact specific. If one party has moved out without any indication of returning, there is an irretrievable breakdown. However, a number of other activities might be considered to be an irretrievable breakdown including stopping marital relations, stopping sleeping in the same bedroom, living in different parts of the home, no longer sharing meals together, and no longer communicating. An “irretrievable breakdown” has been described by the courts as a time when “the breakdown of the marriage is inevitable” or “when the relationship is in serious jeopardy.”
If marital money was used by one spouse to support and further the affair, dissipation might have occurred. We will provide a number of examples of dissipation that are relevant to a case involving an affair.
What are examples of dissipation relevant to an affair in an Illinois divorce case?
- Money spent on gifts for a new boyfriend/ girlfriend
- Travel expenditures spent on a new boyfriend/ girlfriend
- Dining expenses paid for a new boyfriend/ girlfriend
- Money transferred to a new boyfriend/ girlfriend to pay that person’s living expenses
- Payment of a new boyfriend/ girlfriend’s debts
- Purchasing a car for a new boyfriend/ girlfriend
- Making a down payment on a home for a new boyfriend/ girlfriend
- Withdrawing money from a marital account without documentation of where the money was spent
What happens if there is dissipation in my Illinois divorce case?
It is up to the court to determine what happens if the court finds dissipation. If the court finds dissipation, the court can require the dissipating party (the party who spent money on the affair) to reimburse the other party for the dissipated property. Frequently, the court requires the dissipating party to reimburse the other party one half (1/2) of the amount dissipated, but the court is not required to order reimbursement in the amount of one half (1/2) of the dissipated funds. In fact, the court is not required to order any reimbursement for dissipation. It is up to the discretion of the court.
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