Are Divorce Expenses Considered Dissipation of Marital Assets in Illinois?

b2ap3_thumbnail_divorce-costs-money-cash-broken-heart.jpgIn many divorce cases, finances are a major cause of contention. Depending on the complexity of a couple’s circumstances, the divorce process itself can be very expensive. In addition, divorce requires the marital estate, including all marital assets and debts, to be allocated between the parties.

When property division is left to the discretion of the court, Illinois law requires an equitable—not necessarily equal—allocation based on the consideration of a number of factors. These factors normally include the income and resources of each spouse, the contributions of each to the marital estate, and arrangements made for any children. The court must also consider claims of dissipation, or the inappropriate spending of marital assets by one spouse for purposes unrelated to the marriage. But are attorneys’ fees and other expenses of divorce considered “unrelated to the marriage?”

Unclear Statutory Guidance

The Illinois Marriage and Dissolution of Marriage Act (IMDMA) gives the court presiding over a divorce case the authority to order one spouse to contribute toward the payment of attorney fees and related expenses of the other party. The court also has the discretion to order the repayment of dissipated assets to the marital estate by the offending spouse. However, the possibility of considering attorney fees and other divorce expenses as dissipation may not seem to be clearly addressed in the law. Thus, the court may rely on precedents set in previous decisions in making its determination.

Illinois Case Law

While other states, including Virginia and Florida, have consistently found that marital assets can be spent on legal fees without constituting dissipation, courts in Illinois, for many years, ruled in the opposite direction. At both the trial court and appellate court level, Illinois courts regularly found that these expenditures could not be considered as related to the marriage, and were, therefore, technically dissipation. Such findings even applied to fees and expenses that are entirely reasonable and necessary to the process.

Increased Discretion

In 2009, however, an amendment to the IMDMA was signed into law, which offered courts a little more flexibility in making such determinations. In effect, the amendment allows the court to consider the decrease in the value of the marital estate due to advance attorney fees and other related costs. These expenses may still be considered dissipation in some cases, but, generally, such findings are now reserved for unreasonable and unnecessary legal expenditures.

If you have questions about asset division in divorce, including the potential for filing a dissipation claim against your spouse, contact an experienced Kane County divorce attorney. We will assist you in understanding the law and how it may apply to your unique situation. Call 630-549-0960 to schedule your confidential consultation at MKFM Law today.



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