While Illinois rules out marital misconduct as a factor or ground for dissolution of marriage, it can still affect other issues. Dissipation is the use of marital funds by one spouse solely during the irretrievable breakdown of the marriage. Helping us understand the relationship between marital misconduct and dissipation are James B. Pritikin, Divorce and Family Law partner, and former President of the American Academy of Matrimonial Lawyers Illinois Chapter, and Candace L. Meyers, Divorce and Family Law partner who has been practicing almost fifteen years exclusively in family law with a focus on collaborative law and mediation. They share insights on how divorce lawyers go about identifying the numbers for the distribution of the marital estate, how they deal with children issues, and more.
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Marital Misconduct And Dissipation
Our CMO, Sandra Napoli-D’Arco, asks questions that get the attorneys talking about everything they know and have experienced throughout their years of being divorce lawyers.
On this episode, we’re talking about marital misconduct and dissipation with James Pritikin and Candace Meyers. Before we get started into the meat and potatoes and what everyone would like to know about, lets learn a little bit more about each of you.
James: I’ve been practicing family law for quite a while. I am a past President of the American Academy of Matrimonial Lawyers Illinois Chapter. I also served by appointment of the Supreme Court to the Attorney Registration Disciplinary Commission as a hearing chair. That’s enough for me.
Candace: I’ve been practicing for many years exclusively in family law. I enjoy it very much. I was educated at Indiana University. I got my law degree in Columbus, Ohio. I live with my husband and two children. I practice collaborative and mediation as well as litigation.
Our topic is marital misconduct and dissipation. How is marital misconduct defined?
James: It can be defined in many areas. Normally, we think of marital misconduct as adultery. Adultery is no longer recognized as a crime in Illinois. Our statute has eliminated adultery as a ground for dissolution of the marriage. In addition to that, our statute now eliminates marital misconduct from any consideration in the distribution of the marital estate. It is still a factor in the issue of the allocation of parenting time.
Candace: While it’s not a factor when the courts consider allocating assets, marital misconduct can still be dealt with as far as emotional abuse and physical abuse as far as allowing one spouse to be living in the marital residence or dealing with the Domestic Violence Act.
James: It also factors into something we call dissipation.
What is dissipation?
Candace: Dissipation is the use of marital funds by one spouse solely during the irretrievable breakdown of the marriage.
James: How does what we used to call a marital misconduct factor into the distribution of the marital estate? Let’s assume that your spouse has a boyfriend or a girlfriend. Let’s assume that there is an adulterous relationship taking place. It takes place in various beautiful vacation spots like the Caribbean, Paris or Rome. Let’s assume that your spouse takes his paramour to all of these places at his expense, showers her with beautiful gifts at the expense of the marital estate. How does the marital estate get compensated for this marital misconduct? If we are able to determine what those expenses were and identify them and if they are determined to be what we now call dissipation, they’re added back into the marital estate and then they are distributed equitably.
Candace, a spouse may not learn of marital misconduct or dissipation for years. How do divorce lawyers go back and retrieve this information?
Candace: The statute does limit the time. It cannot be the entire length of the marriage if in fact a marriage is 25 years. A spouse should have known or knew about this extramarital relationship or spending. The statute justifies that it can be at least no longer than five years. The sweet spot is no more than five years from the date of filing the petition for dissolution of marriage. How do we go about it? The first place that I look as a professional is bank accounts. The second place is credit card statements. Credit cards show a great deal and tell a great story about spending especially comparing them to credit card statements before a spouse presumes the marriage is breaking down and comparing what spending was like in one screenshot of time compared to the current screenshot of time. Another great place to look is passports. You see the stamps. If there are stamps from various countries during the irretrievable breakdown, that is a good place to start with wondering if a spouse is traveling outside of the marriage.Clear and convincing evidence is one step down from beyond a reasonable doubt. Click To Tweet
Jim, what if a spouse has opened up a credit card on the side and it’s not a joint credit card? How do you trace that?
James: First of all, my experience going through the disillusion of the marriage is that generally there are separate credit cards. That’s not unusual that there’s going to be a credit card in one spouse’s name and a credit card in another spouse’s name. When you say, how do we go about it? First of all, we have to determine whether or not there is a credit card. That quite frankly comes under the rules of disclosure because that spouse has an affirmative duty to disclose all credit cards and all bank accounts. When we have the beginning of that information, it’s a trail that we follow. I look at text messages. I look at phone records aside from credit card statements, aside from bank statements.
Candace: I look at social media.
James: Social media is a great source.
Candace: That is a great source of following someone’s travel and someone’s relationship. Whether a spouse says, “I am traveling to New York City for business.” You can see a photo of the spouse and another person clearly dining out and enjoying themselves.
James: That’s interesting because it triggers writing into something that I always come tell my clients when I’m working with a client, “Are you engaged in any social activities? Stop. You’re finished with Facebook. You’re finished with Instagram. You’re finished with Twitter. You no longer participate in any of the social media.” It’s over because all you’re doing is creating a wonderful trail for your wife or your husband’s lawyer to follow.
To be clear, anything prior to that conversation can be used, correct?
James: Absolutely and it’s easily discoverable. Subpoenas serve wonderful purposes. If you serve a subpoena, you get big surprises when they come back.
Candace: When Jim was talking about credit card statements and exchanging credit card statements, we can get clued in that there are additional accounts by reviewing accounts and showing payments from a bank account to a credit card that wasn’t disclosed. We send a subpoena to that credit card company. We not only may find that the account that we knew about, but there may be six other accounts that were not disclosed.
James: Then come ATM withdrawals which is a clever way of saying, “I don’t leave a trail because I’m using cash.” The answer to that is if the ATM withdrawals are unusual, you cite them as a dissipation by the other side. The burden shifts as to who has to prove what those funds were used for. That creates an interesting dilemma for the other party because first of all, there probably aren’t any records of how he spends that cash because the last thing he wants is the receipt. There are no records of that.
Chances are if you see unusual ATM withdrawals, they’re going to be treated as dissipation and added back into the marital estate. Last but not least, it’s interesting that we have that five-year period that we can only go back to. What happens is that generally during that five-year period, one or the other is keeping secret the relationship that he has with or her with that paramour. They’re not thinking about any trail that they’re establishing within that five-year period. As you begin to do your discovery and you get back to the year five, four, or even three, you begin to find a lot of trails because they weren’t thinking about divorce at that time. They weren’t worried about what trail they’re going to leave behind.
Let’s take some examples. Let’s assume the spouse is cheating. How does that play into the divorce? How does that play into the greater share of that marital estate? Do I get more? Do I get less? How does that play into all the different parts that fall into divorce?
Candace: You do not get a greater share of the marital estate because your spouse has been in an adulterous relationship. It only comes into play in terms of dividing the assets and maybe a spouse has spent unnecessarily or outside of the marriage, it would be considered a pre-distribution. If the assets were divided, that spouse would have had the opportunity to use those assets as they wished, but they did it during the marriage. It’s considered a pre-distribution. As far as parenting goes, if a spouse is in an adulterous relationship, unless the spouse is exposing the children to an individual who’s unsafe, it doesn’t come into play with decision making and parenting rights or responsibilities.
James: I said at the beginning of our little discussion that we’re an equitable distribution state. Maybe I need to spend a moment defining exactly what that is. With my clients, I always started out with the presumption that the marital estate is divided 50/50. That’s the way I begin to approach it. I add into it the elements of what might make it a disproportionate distribution of the marital estate. The prime example is one spouse’s ability to recover assets after the divorce as opposed to the other party. It helps the judge decide maybe this one deserves a little bit more than that one.
Equally as important is allowing the judge to learn a little bit about the history of the marriage and the character of the parties. Judges are human beings. They’re influenced by human activity. If you can convince a judge that the husband has violated the vows of this marriage. He engaged in some pretty awful behavior and disrespectful behavior towards his spouse and has treated her poorly, maybe even physically abused her from time to time. Those aren’t necessarily factors that should be introduced in terms of disproportionate distribution. Those factors can’t help but be persuasive if the judges are borderline considering whether somebody is going to get 60% or 70% of the marital estate. Let me push it to 70%. That’s where it becomes useful.
Let’s talk about the actual divorce process. First of all, how long does it typically take?
Candace: I get that question a lot. It depends. If one spouse may have taken some emotional time and some time to do some internal planning and some external financial planning, it may take the other spouse some time to get up to speed, both emotionally and financially. Many times that one spouse has more assets and more access to assets and income. The other spouse may need time too with their attorney to catch up. That process takes a bit of time. It makes a difference on how educated the parties to come to the table and how willing they are to listen to what the law is and to get good advice that is practical. Whether they’re willing to work together and within the bounds of the law and being creative and whatnot.
James: There are two aspects to divorce. There are children and there’s property. There are two distinct parts of the divorce. With respect to children, our Supreme Court has a rule. It says, “All matters relating to children must be completed within eighteen months.”
Candace: Unless good cause is shown, which is flexible.
James: It could be extended, certainly. Generally speaking, the courts want the children issue resolved immediately. In fact, we’re pressured at the very beginning of the filing of a divorce case to introduce what’s called an allocation judgment, which used to be custody. We no longer have custody. We have allocation. It’s a very fancy word for custody. It doesn’t change very much except the terminology quite frankly.
Candace: It’s allocating decision making and decision making was formerly called custody.
James: Most of us lawyers when we get into a case, we focus on the children issues initially. See if we can get those resolved. If you can get the children out of the divorce, then you’re talking about the dissolution of a business partnership, which is what the rest of the marriage is. How much have you invested? How much did I invest? What return do I get out on my investment when this partnership is dissolved? I would think generally, you don’t see divorces go much beyond two years. That’s probably a good goal. I will tell you quite frankly, I’m going to trial on a case that was filed in the year 2014. They go extended. They go over a period of time.
2014 to 2019, that’s a long time to be going through a divorce and to be single. Talk to me about dating during the divorce process.
Candace: It’s not prohibited. I do get folks in here quite often who’s asked me, “Am I allowed to date?” My answer is, “Yes, you are allowed to date. You were allowed to date during the marriage. You’re allowed to date after the marriage.” Where I caution my clients is the spending and ensuring that the spending does not go egregiously outside of the marriage because you could have a spouse coming in and making a claim for dissipation.
James: That relates to why divorce takes longer. Dating outside the marriage or getting into a relationship after you filed for divorce usually creates a situation where one of the partners is angry. That anger manifests itself by prolonging the dissolution process. You go from what normally would be one, two, three. You’re not getting out this easy. It’s going to be tough. “I’m going to make you suffer because you’re making me suffer. You’ve humiliated me.” I told you I’m going to a trial on a case that was filed in 2014, it personifies exactly that. There’s so much anger involved and there’s so much intent on punishing the spouse. Money is no object, although it is. Time is no object.
If you are going over two years and one or two of the people are dating other people and they are spending money, how is that calculated into the final settlement?An interesting thing about being a lawyer is that there is no right or wrong way to argue. Click To Tweet
Candace: What I like to do is have a balance sheet. I like to start a balance sheet right from the beginning. Setting forth all of the assets that we know about and continuing to update and follow all of those assets, all of the liabilities to make sure that you have a handle on what is coming in and out of the marriage. During the divorce process, you could have a job loss, you could have a significant increase in income, you could have health issues and ensuring that you keep track of what’s coming and going from a balance sheet perspective is a good tool to make sure that you have a handle on people who are going in two different directions are not legally severed but are living separate lives.
James: It goes back to the issue of dissipation, the tracing of how funds are used to get that balance.
Let’s talk about child support. If I’m dating someone, does it affect how much child support I receive?
James: Not in Illinois anymore. Child support now is a financial calculation that’s made with software programs, which doesn’t calculate or take into consideration the issue that you addressed. It’s some question of math.
Can you walk me through that? I know that’s another podcast, but there may be readers whose interest may have been piqued.
James: We are income-sharing jurisdiction now. Up until a couple of years ago, it was a percentage of a non-custodial parent’s income that was determined to be child support. It is now income sharing. We have a formula which I’m not going to get into because it’s too complicated for us to talk about here. What we had in each of the spouse’s income, we then have to measure the number of nights that the child spends in each parent’s home. That’s part of the calculation that’s fed into the process. When we feed that into this computer-generated program, we get a number. It’s a number that either one spouse owes to the other for support.
Candace: If this spouse is dating someone, if that individual pays for items, it does not adjust the child support. If I have a client who comes in and let’s say for purposes of this conversation is the father who has a higher income. He asked me, “What if my spouse has a boyfriend and the boyfriend earns a significant income and takes the children out to dinner and takes the long trips, will my child support be adjusted because of that?” My answer is no. Do you have a different answer to that?
James: Let me add one thing. Although I said that we are computerized child support, that’s not wholly true because the court has the discretion to go above or below those were requirements under this statute depending upon the circumstances, especially lifestyle. Their lifestyle may dictate that child support exceed the statutory.
Candace: If you give a judge a good reason or several good reasons to deviate from the guideline, judges are interested in hearing those arguments. They want some details and want some reasons to be able to order outside of those guidelines that they have to be given to the judge in an organized and well-reasoned way.
James: This example is private school tuition. It may very well require the court to exceed guidelines in order to provide enough support for the children as well as to defray the expenses of a private school.
Getting back to dissipation, does one party have a burden over the other to prove dissipation?
Candace: The person who is claiming that the other spouse has dissipated marital assets has the burden to be within the five years or three years that they should have known about this alleged dissipation. You have notice requirements. The notice must be given within 60 days before the trial or 30 days after discovery closes. It has to be set out with specifics, with timeframes and specific instances. It cannot be, for instance, a notice that says, “I believe that you dissipated $425,000,” signed by the attorney. It must be with specific dates and specific instances. The burden shifts to the party who is trying to state that they didn’t dissipate marital assets and that person needs to prove by clear and convincing evidence that they did not commit dissipation.
James: What is clear and convincing evidence? You’ve heard of beyond a reasonable doubt. That’s not clear and convincing evidence. Clear and convincing evidence is one step down from beyond a reasonable doubt. It’s a very substantial, significant burden that’s placed on the defendant or a person who was trying to prove that these funds were for a marital purpose. That $500 and some odd dollar dinner that I had was not with my paramour. It was with a business associate I took out for dinner, which helped me generate income for this marriage to help support your lifestyle. That’s a burden that shifts to him and this is a tough burden.
Hypothetical, what if my spouse has a gambling problem and isn’t perhaps purposefully spending it on another person rather gambling in a way because of his or her gambling problem?
James: It’s a perfect example of dissipation. I’ll go with one better than that. It was a personal experience I had with a friend, who I traveled to Las Vegas with, who’s going through a divorce. I was not representing him. He was extremely emotionally disturbed about his divorce situation. He began to gamble in a very careless manner and with sums that were beyond his means to lose. I said, “What are you doing?” He said to me, “I’d rather the casino have it than her.” He can move away almost the entire marital estate. Is that dissipation?
It sounds like it to me.
Candace: It may not be considered dissipation. There is an Illinois case that states that if the gambling, for instance, was the lifestyle of the marriage for decades and decades, the spouse went to the race track or played the lottery and went to Las Vegas. Is it dissipation when this behavior they participated in together and went on for twenty years? It may not be dissipation.
James: If you lose, it’s dissipation. If you win, it’s part of the marital estate.
Candace, what about plastic surgery? If one spouse decides to go to Jim’s wife and get lots of plastic surgery done, how does that play into?
Candace: I could argue that both ways. If an actress got cosmetic surgery to perfect some imperfections with her body or her face and would arrive at a great role, is it dissipation? I don’t know. Is it dissipation when a spouse goes to get cosmetic surgery with the intention of filing a petition for dissolution of marriage the next month and dating and finding a new husband? In my opinion, it’s considered dissipation.
James: I’ll give you an interesting proposition. It’s a case that I had where my client had breast cancer and underwent a double mastectomy. My recollection is about three or four years before the breakdown of the marriage and they’re divorcing. During the divorcing process, she went in and had plastic surgery, reconstruction. When I asked her, “Why are you having reconstruction now?” She said, “Because I know I’m going to be dating and I know I’m going to hopefully marry again. It’s important for me in my life going forward.” Is that dissipation?
Candace: It’s an interesting argument that could be argued both ways. We come across that quite often.
Here’s another hypothetical. I buy tickets to the World Series game for my boyfriend. He wanted the tickets. Is that dissipation?
Candace: It’s dissipation. I could see someone arguing that it’s not, that it’s business development if the person is in the sports industry or an agent.
James: How many tickets did she buy? Two?
Candace: Did she bring the boyfriend’s whole family?
James: No, she was taking the children.
I’m hearing two excellent lawyers who could argue either way.
James: That’s an interesting thing about being a lawyer. There is no right or wrong way to argue. If you’re not prepared to argue both sides the case, you’re not a good lawyer.
Thank you very much. Is there anything else that you would like to include on either marital misconduct or dissipation that the audience of this podcast should know?
James: Don’t waste your time on petty issues. If the dissipation that you’re looking at or looking to claim is not significant, don’t waste your time, your energy and your money. If it’s major and it’s worthwhile, your lawyer is going to tell you it’s worthwhile pursuing. If it is, you pursue it.
Candace: I agree with that. If you are milling over bank statements and credit card statements, checking out each time they were at the Starbucks that might be in the boyfriend’s building, it’s not going to add up enough to be significant. It will counterbalance what you’re paying in attorney’s fees.
Thank you both. This isn’t the last that you’ve heard from Candace and James. You will hear from both of them again on a new divorce talk. Thank you very much for reading. If you like what you’ve read, please share it on your Facebook and LinkedIn pages. At any time, you can reach out to either James or Candace or call them or view their bio and learn more about them on www.Beermannlaw.com. Thank you.
About James B. Pritikin
Since receiving his Juris Doctor from DePaul University of Law, James B. Pritikin, a founding principal of Nadler, Pritikin & Mirabelli, LLC, has built a distinguished career by practicing exclusively in the area of family law for over thirty years. Mr. Pritikin is a Fellow of the American Academy of Matrimonial Lawyers, and holds the honor of serving as a Past President for the Illinois Chapter of the American Academy of Matrimonial Lawyers.
Jim has also served as a Director of the American Academy of Matrimonial Lawyers Foundation. Mr. Pritikin retains active membership in the Family Law Sections of the American Bar Association, Illinois State Bar Association and the Chicago Bar Association. He is a certified Matrimonial Mediator and Arbitrator.
Jim’s past accomplishments include speaking engagements for the Illinois and Chicago Bar Associations and DePaul University College of Law. Jim was presented with the A. V. Rating of Martindale-Hubbell and is the subject of a biography for “Who’s Who In American Law.” Jim is a Member of the Leading Lawyers Network, and was recognized by Chicago Magazine as a “Top 100 Illinois Super Lawyer”. Mr. Pritikin has also been selected by his peers for inclusion in the “Best Lawyers in America” each year since 2017.
Mr. Pritikin was appointed by the Illinois Supreme Court as Hearing Chairperson for the Attorney Registration and Disciplinary Commission.
About Candace L. Meyers
Candace L. Meyers is passionate about her role as an advocate. Her goal is to guide her clients through what is oftentimes the most challenging experience of their lives. Candace is sensitive to both parties’ emotional needs and the family dynamic. Candace loves what she does and the experience she brings to the table. As far back as she can remember, Candace had a calling to protect those who were unable to defend themselves.
Candace handles a variety of family law cases, including complex parenting rights and responsibility disputes and extensive asset tracing. Candace represents her clients through cooperative means, including mediation and negotiation or litigation as needed. Candace is also trained in Collaborative Law. She is intently focused on empowering her clients by educating them on the divorce process and guiding them toward the most favorable results. She is admired by her peers for her knowledge, integrity and sense of humor.
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