At trial, the wife testified about and introduced into evidence several spreadsheets.  She argued that they made a basic showing that the husband had dissipated over $160,000.  In unaccounted cash withdrawals from his bank accounts from 2010 through the first half of 2016.

Dissipation is the use of marital assets for the benefit of one spouse for purposes unrelated to the marriage while the marriage is undergoing an irreconcilable breakdown. The party alleging dissipation must first make a basic showing that dissipation has occurred. Once this showing has been made, however, the burden shifts to the party charged with dissipation to show with clear and specific evidence how the funds were spent.

Her reasoning included an analysis of his stated living expenses on his financial disclosure.  Compared to his total withdrawals from his bank account statements.

He did not take the witness stand to rebut the evidence.  Instead, he argued that the wife had simply not met her burden of providing a basic case of dissipation.

The trial court agreed and ruled that no basic case had been made. The wife appealed.  The appellate court reversed the trial court.

Whether a party’s conduct constitutes dissipation depends on the facts and circumstances of the particular case. Because dissipation is a factual inquiry, we will reverse the trial court’s findings on the question only if they are against the manifest weight of the evidence. The court’s findings are against the manifest weight of the evidence if the opposite conclusion is clearly apparent or if the findings are not based on the evidence.

The court grappled with the question of what the wife needed to show in order to make a basic showing of dissipation. It is clear that the party claiming dissipation is not required to demonstrate that the funds at issue were used for a purpose unrelated to the marriage.   What is somewhat less clear is what a party must show where, as here, the alleged dissipation involves moderate expenditures and withdrawals that add up over time. This is likely because, in many cases, the basic evidence of dissipation consists of large withdrawals of cash from the parties’ bank accounts.

Dissipation is premised on the diminution or devaluation of the marital estate. In this case, the court held that dissipation can also be based on evidence that a spouse withdrew funds that far exceeded his or her living expenses over a period of months or years.

The court also held that the wife did not meet her burden of proving when the marriage began undergoing an irretrievable breakdown.  Therefore, she was limited to claiming dissipation at the time of the parties’ actual separation.

In re Marriage of Hamilton, 2019 IL App (5th) 170295

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