Dissipation: When Does it Begin to Begin?
In 1990, the Illinois Supreme Court defined dissipation of assets as arising when property is improperly used for the sole benefit of one spouse, for a purpose unrelated to the marriage, at a time when the marriage is undergoing an irreconcilable breakdown." See IRMO: O'Neill, 138 Ill.2d 487, 150 Ill.Dec. 607, 563 N.E.2d 494, (Il.S.Ct 1990). The first element, the expenditure of funds, was typically more ascertainable than the second element, the date of marital breakdown (the phrase we commonly use to express this language). The latter question of fact usually hinged on testimony of event-related dates such as, when the couple began sleeping in separate bedrooms, when someone had an affair, or when the dissolution case was filed. The party alleging dissipation seeks to establish a date of marital breakdown, and the defending party argues for a later date of marital breakdown, such as the filing date. But that is not always the way of marriage and marital breakdowns. So when is the marriage undergoing an irreconcilable breakdown?
In IRMO: Holthaus, 387 Ill.App.3d 367, 326 Ill.Dec. 138, 899 N.E.2d 355, (2ndDist. 2008), the husband alleged that the wife's gambling constituted dissipation. In October 2001 he alleged that he discovered sizeable ATM withdrawals and confronted his wife about her gambling. As to the date of marital breakdown, he alleged that the parties ceased having a "romantic relationship" in 1997 (the wife said this occurred sometime in the late 1990's), ceased sharing a bedroom in 1998, and ceased sharing meals in 2001. At a deposition the wife testified that she believed that the marriage was irreconcilably broken down in 1999, but later testified that she had not understood that question. Moreover, in 2001 the parties actually started residing in separate parts of the house. In 2003 the husband testified that he worked on the wife's mother's house, and the wife testified that they worked together on the house. The husband left the house permanently in February 2005. The wife filed for dissolution of marriage in March 2005.
Faced with multiple dates and events, as well as conflicting testimony, the court had to determine the date of marital breakdown. The trial court noted the disputed facts, and indicated that it would be helpful if the court had a "more objective determinant", observing that "there was no testimony of any 'triggering' event after the 2003 joint effort to repair the wife's mother's house". The trial court then held that the date of "irretrievable (sic) breakdown [was] February 2005, the date of physical separation". The trial court found that the wife had dissipated $118,688. Wife appealed that the court erred in including as dissipation an expenditure that occurred prior to the February 2005 date of irretrievable breakdown, and Husband cross-appealed that the court erred in calculating dissipation only as of February 2005.
Note that the trial court sought an objective "triggering" event that might evidence a date of irreconcilable breakdown. As practitioners, we often seek "the date" that it broke down. While we must establish some date, it is notably not the date that it had completed breaking down. Relationships may tend to rust or deteriorate over a number of years without major events marking a particular date of marital breakdown. I have had many clients say such things as "we've been living like roommates for years". Nevertheless, courts must determine a date (of irreconcilable breakdown), and there are "events" that signal that the marriage has begun to undergo an irreconcilable breakdown.
The Appellate Court in Holthaus agreed with the husband, and held that "dissipation is to be calculated from the time the parties' marriage began to irreconcilably break down … not from a date after which it is irreconcilably broken," citing IRMO: Olson, 223 Ill.App3d 636, 647, 166 Ill.Dec.60, 585 N.E.2d 1082 (1992). The Appellate Court in Holthaus reversed and remanded for the trial court to determine "[w]hether it began in the late 1990s when the parties ceased having marital relations and sharing a bedroom or in 2001 when [wife] stated she wanted a divorce and made a plan for separating the parties' financial responsibilities or at some other time supported by the evidence …".
In depositions and trials throughout Illinois, family law practitioners have queried witnesses: "when did your marriage irreconcilably breakdown?" IRMO: Holthaus reminds us to add: "when did it begin to irreconcilably breakdown?"