The date of separation that you plead in your no-fault divorce petition can have a major impact on your exposure to, or your ability to assert, a dissipation claim at a later stage in your divorce litigation. A dissipation claim is a claim by you or your spouse that the other spent money for a purpose unrelated to the marriage at a time when the marriage was broken down. The person making the claim is seeking to receive an offset, equal to half of the dissipated money, in their favor when the court divides the marital property. Dissipation claims are provided for in Section 503(d)(2) of the Illinois Marriage and Dissolution of Marriage Act (the “Act”).
Spotting The Dissipation Pitfall
Section 403 of the Act states that when preparing your petition for dissolution of marriage, you must include the reason why you are requesting the court to enter a divorce judgment. This is also known as the “grounds” for a divorce. Section 401 of the Act lists all the available grounds for a divorce. One such ground for a divorce is “irreconcilable differences,” which is commonly known as the ground for a no-fault divorce.
To obtain a no-fault divorce , there is a requirement that you must have been living separate and apart from your spouse for a continuous period in excess of 2 years. However, if you and your spouse both sign a valid 2-year waiver, then this requirement may be reduced to 6 months. As such, a date of separation is commonly included in a no-fault divorce petition to satisfy this requirement.
The problem is that if you plead a date of separation far in the past, then you expose yourself to a potential claim by your spouse that you dissipated marital assets back to the date pled. If you plead a date of separation very close to the present date, then you limit any potential claim of dissipation that you may have against your spouse to the date pled. As such, the separation date should be carefully considered because dissipation claims can reach hundreds of thousands of dollar or more.
Avoiding the Dissipation Pitfall
Because you are unable to predict what the discovery may or may not reveal in terms of a dissipation claim, the date of separation should be omitted from your divorce petition. By omitting the date of separation, you will avoid the potential hazard of locking yourself into a date of separation early in the divorce litigation. Allegations that you and your spouse have lived separated and apart, without stating an exact date of separation, should be sufficient for a proper no-fault divorce petition and should stand up against a motion to dismiss, if filed by your spouse. The following is suggested language for a ground of irreconcilable differences to be included in your no-fault divorce petition:
“HUSBAND and WIFE have lived separate and apart and irreconcilable differences have caused an irretrievable breakdown of the marriage. Efforts at reconciliation have failed, and future efforts at reconciliation would be impracticable and not in the best interests of the family.”