My Spouse Had an Affair, Does This Matter?

My Spouse Had an Affair, Does This Matter?

It does, but not in the way many aggrieved spouses assume or want. All states now allow some form of a no-fault divorce. That is, no fault needs to be cited to initiate a divorce proceeding. But Illinois goes further by forbidding blame or fault from impacting the division of assets. Specifically, the Illinois Marriage and Dissolution of Marriage Act states the court “shall divide the marital property without regard to marital misconduct in just proportions.” [750 ILCS 5/503 (d)].

Likewise, infidelity is rarely considered when deciding parental responsibility. Formerly known as “custody” in Illinois, parental responsibility includes both decision-making responsibility and parenting time. The only way infidelity can impact parental responsibility is if it incorporates abusive, neglectful, or other behavior which could have a harmful effect on a child.

However, any affair(s) by a spouse will impact the division of property if dissipation can be proven and calculated. The Illinois Supreme Court defines dissipation as the “use of marital property for the sole benefit of one of the spouses for a purpose unrelated to the marriage at a time that the marriage is undergoing an irretrievable breakdown.” [In re the Marriage of O’Neill, 138 Ill. 2d 487 (1990)].

Almost all affairs use marital funds to pay for vacations, sporting events or shows, jewelry, clothing, extravagant dinners, outright cash gifts, etc. These funds can effectively be “pulled back” into the marital estate at the expense of the cheating spouse.

But proving and determining dissipation can be difficult. As the Supreme Court noted, dissipation occurs while the marriage is “undergoing an irretrievable breakdown” – so timing is critical. The longer this period is determined to be, the more expenses can be included in a dissipation claim.

Proving dissipation can be complicated as certain specific steps must be undertaken. If dissipation is material enough, a forensic expert may be required to analyze, determine, document, and calculate these amounts. Any exhibits calculating and documenting dissipation should be clear to understand and convincing for a judge.

While bitterness and resentment may lead many spouses to seek dissipation claims, these feelings should only be indulged with material money at stake relative to the cost of proving such a claim.


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