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welcome to divorce talk a podcast for people who are contemplating divorce going through one or would like to know everything about the divorce process each episode you'll hear from Chicago divorce lawyers from Biermann LLP one of the largest divorce and family law firms in the state of Illinois speak on all things divorce from child custody divorce litigation mediation the collaborative process and everything in between now here are your hosts the Beermen divorce lawyers hello and welcome to the podcast I'm Sandra Napoli d'arco on this episode we're talking about marital misconduct and dissipation with James Pritikin and Kandace Meyers so before we get started into the meat and potatoes and what everyone would like to know about if we can just learn a little bit more about each of you so that our viewers know who they'll be well I don't want a boring I been practicing family law for quite a while and I am a past president of the American Academy of matrimonial lawyers when we chapter I also served by opponent of the Supreme Court to the attorney registration and Disciplinary Commission as a hearing chair I think that's enough for me I've been practicing for almost 15 years exclusively family law I enjoy it very much I was educated at Indiana University and got my law degree in Columbus Ohio I live with my husband and two children and I practice collaborative and mediation as well as litigation great all right well let's let's not waste any time and let's get right into it so today's topic is marital misconduct and dissipation can you tell me a little bit about exactly how is marital misconduct defined it can be defined in many many areas I think normally we think of marital misconduct adultery and adultery is no longer recognized as a crime in Illinois so our statute has eliminated adultery as a grounds for dissolution of the marriage in addition to that a 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 just to jump in 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 it also factors into something we call dissipation what what is that because a lot of lay people including myself does not understand what dissipation means it sounds like a big fancy word participation so dissipation is the use of marital funds by one spouse solely during the irretrievable breakdown of the marriage so then how does what we used to call marital misconduct factored into the distribution of the marital estate great question go for it okay well let's assume that your spouse has a boyfriend or a girlfriend and let's assume that there is a an adulterous relationship taking place and it takes place in various beautiful vacation spots like the Caribbean Paris Rome and let's assume that your spouse takes his paramour to all of these places at his expense showers are with beautiful gifts at the expense of the marital estate so 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 are added back into the Maryland West's state and then they are distributed equitably so Candace how how do divorce lawyers go about identifying what because a spouse may not learn of marital misconduct or adultery maybe you know two years three years I just heard of a case pretty much the entire length of the marriage how does one go back or how did the lawyers figure out what that number is you know how do you figure that out so the statute does limit the time it cannot be the entire length of the marriage if in fact a marriage is 25 years and a spouse should have known or knew about this extramarital relationship or or spending but the statute does define that it can be at least no longer than five years so really the the sweet spot is no more than five years from the date of filing the petition for dissolution of marriage and how do we go about it you know the first place that I look as a professional is bank accounts second place is credit card statements I think credit cards show a great deal and tell a great story about spending especially comparing them to credit card statements from the forest house pursues the marriage was breaking down and comparing what the spending was like in one screenshot of time compared to the current screenshot of time and when Jim and I were talking 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 is is is traveling outside of the marriage Jim what about if a spouse has opened up a credit card on the side and it's not a joint credit card how do you have you trace that well first of all my experience is that I was going through the dissolution of the marriage generally identify with separate credit cards so that's not unusual that they're doing their credit card in one spouse's name and their credit card in another spouse's name so when you say how do we go about it well we first of all have to determine whether or not there is a credit card okay and that quite frankly comes into the rules of disclosure because that spouse has an affirmative duty to disclose all credit cards or bank accounts so when we have the beginning of that information it's a trail that we follow and I look at text messages I look at phone records aside from credit card statements decide from bank statements I look at social media damage source I think that that is a great source of following someone's travel someone's relationship whether spouse says well I'm traveling to New York City for business and did they see and you can see a photo of the spouse and another person clearly dining out and enjoying themselves you know that may not be for that citruses triggers right into something that I tell my clients when I'm working with a client are you engaged in any social activities you're finished with Facebook you're finished with Instagram you're finished with Twitter you no longer participate in any of that social media it's over because all you're doing is creating a wonderful trail for your life for your husband's a lawyer to follow and just to be clear anything prior to that conversation can be used that currently and is easily discoverable yeah I mean subpoenas serve wonderful wonderful purposes you serve a subpoena you did big surprises when they come back it's true and 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 and we send a subpoena to that credit card company we not only may find the account that we knew about but there may be six other accounts that were not disclosed so again subpoenas are a beautiful way to so then come ATM withdrawals which is the clever way saying well now I don't leave a trail because I'm using cash and the answer to that is if the credit if the ATM withdrawals are unusual you cite them as they dissipation by the other side and the burden shifts as to who has to prove what those funds were used for and that creates an interesting dilemma for the other party because first of all to probably aren't any records of how he spends that cash because last thing he wants is receipt so that I know records of that and chances are if you see unusual ATM withdrawals they're gonna be treated as this is the patient and added back into the Merrill estate and last but not least it's interesting that we have that five year period that we make we can only go back to you know what happens is that generally during that five year period one or the other is keeping secret the relationship that he has with her with that paramour so they're not really thinking about when he trailed that they're establishing within that five year period so as you begin to do your discovery and you get back to a year five four Ravens free you begin to find a lots of trails because they weren't really thinking about divorce at that time and they weren't worried about what kind of a trail they're going to leave the so let's assume let's take some examples let's assume spouse is cheating how does that play into the divorce how does that play into the greater share of the marital estate do do I get more do I get less how does that play into all the different parts that Solal into divorce 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 just like 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 so it's considered a pre distribution as far as parenting goes if a spouse is in a adulterous relationship unless their spouse is exposing the children to an individual who's unsafe it doesn't come into play with decision-making and parenting rights and responsibilities I said the beginning of our little discussion that we're an equitable distribution statement and maybe I need to spend a moment defining what that is with my clients I always start out with the presumption that the marital estate is divided 50/50 and that's the way I begin to approach it and then I add into it the elements of what might make it a disproportionate distribution of the miracle estate the time example is when spouses ability to recover assets after the divorce as opposed to the other party it helps the judge decide maybe this one deserves a little more than that but more importantly I think not more equally as important is allowing the judge to learn a little bit about the history of American a character of the parties judges are human beings and they're influenced by human activity so if you can convince a judge that he was forsaken determine the husband has really violated the bowels of this marriage any newly engaged in some pretty awful behavior and disrespectful behavior towards a spouse and has really treated her poorly maybe even physically abused or protective entities well those are 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's going to get 60 or 70% of the marital estate then they just pushed it to the 70 percent and that's where it becomes useful how long does it typically take well I get that question a lot I think it depends on 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 and the other spouse may need time to with their attorney to get caught up so that process takes a bit of time and it makes a difference on you know how educated the parties come to the table and how willing they are to listen to what the law is and to get good advice that is practical and whether they're whether they're willing to work together or and within the bounds of of the law and you know being creative and whatnot were there two aspects to divorce there's children and this property and there really are two distinctive 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 18 months okay unless good cause is shown which is flexible could extended certainly but generally speaking the courts want the children issued result immediately and 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 know the longer we have custody allocation okay so it's a new word for the scene it's it's a it's a very very very fancy word for custody it really doesn't change very much except the terminology quite frankly it's allocating decision making and decision making was formerly called custody so I think most of us lawyers when we get into a case focus on the children issues initially see we can get those resolved if you can get the children out of the divorce then you're really talking about the dissolution of a business partnership which is really with the rest of the marriages how much have you got invested how much did I mean just what kind of return do I get out and I my investments 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 you know that's a long sight although I will tell you quite frankly in three weeks I'm going to on a case that was filed in near 2014 okay so they do call extended they do go over a period of death okay so 2014 were in 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 well it's not prohibited I do get folks in here quite often have asked me am I allowed to date and my answer is yes you are 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 defending does not go egregiously outside of the marriage because you could have coming in and making a claim participation and divorce takes longer dating outside the marriage getting into a relationship after you file for divorce usually creates a situation where one of the partners is angry and that anger manifests itself by prolonging the dissolution process so you go from what normally would be one two or three you're not getting out this easy it's gonna be tough on you and I'm gonna make you suffer because you're making me suffer and you know ated me so that process then they got dragged out I told you I'm going to take trial on April a case that was finally 2014 for satisfies exactly that there's so much anger about me and there's so much Intendant punishing the spouse that money is no object although it really is anti-missile object so how are assets we may have talked about this but if you are going over two years and one or two people are dating other people and they are spending how is that calculated into the final settlement what I like to do is have a balance sheet and 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 because you know during the divorce process you could have a job loss you could have a significant increase in income you could have health issues and just ensuring that you keep track of what's coming and going from a balance sheet perspective I think is a good tool to make sure that you have a handle on on people who are going in two different directions are not legally severed but are living separate lives well and again it goes back to the issue of disposition and the tracing of how funds are used to get that balance so I'm jumping a bit but let's talk about child support and if I'm dating someone does it affect how much I receive from the other spouse if they are dating someone with child support now is it is a financial calculation that's made with software programs which doesn't calculate or take into consideration the issue that you just addressed it's some question of math can you walk me through that I know that's another podcast but there may be viewers whose interest may have been piqued okay we are a income sharing jurisdiction now up until a couple of years ago it was a percentage of a land custodial parents income that was determined to be child suppor it is now income sharing and we have a formula which I'm not going to get into this is really too complicated for us to talk about here what we had in each of the spouses income we then have to measure the number of nights that the child spends in each parents home and that's part of the calculation that's fed into the process and when we feed that into this computer-generated program we get another and it's a number of these households to the other or support and if a spouse is in dating someone if that individual pays for items it does not adjust the child support so 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 and he asked me my what if my spouse has a boyfriend and the boyfriend earns a significant income and takes the children out to dinner and takes them on trips my child support be adjusted because of that and my answer is no and I mean do you have a different answer to that let me just add one thing although I said that we are a computerized challenge that's not wholly true because the court has the discretion to go above or below those requirements under the statute depending upon the circumstances especially lifestyle and that lifestyle may dictate that child support exceed the statutory you give a judge a good reason or several good reasons to deviate from the bag line and I think judges are interested in hearing those arguments and want some details and lots of reasons to be able to order outside of those guidelines but they have to be given to the judge in a organized and well reasoned way the best example is private school tuition it may very well required the court to exceed deadlines in order to provide enough support for the children as well as to defray the expenses of private school so getting back to dissipation it does one party have a burden over the other two to prove dissipation so the person who is claiming that the other spouse 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 and the notice must be given within sixty days before the trial or 30 days after discovery closes and it has to be set out with specifics and with timeframes and specific instances it cannot be for instance a notice that says I believe that you dissipated four hundred and twenty five thousand dollars signed by the attorney it must be with specific dates and specific instances and then the burden shifts to the party who is trying to state that they didn't dissipate marital assets and the burden shifts and that person needs to prove by clear and convincing evidence that they did not commit dissipation so what is clear and convincing evidence that's a great question you know you've heard of beyond a reasonable doubt yes I have heard that's not okay convincing evidence is one step down from beyond a reasonable doubt so it's a very substantial significant burden that's placed on a defendant or a person who was trying to prove that these funds were for a marital purposes that five hundred and some odd dollars 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 lifestyles that's a burden that shifts to him and this is a tough birth okay so a hypothetical what if my spouse has a gambling problem and isn't perhaps purposefully spending it on another person rather gambling it away because of his game his or her gambling problem clearly it's a perfect example of participation but I'll go one better than that the personal experience I had with a not a client but a friend who had traveled to Las Vegas with who was going through a divorce I was not representing him and he was extremely emotionally disturbed about our situation and then began to gamble but gamble in a very careless manner and with sons that were beyond his means to lose and I said what are you doing and he said to me if they're en I'd rather the casino have it okay anticipation sounds like it to me interesting ever it may not be considered dissipation and there's an Illinois case that states if the gambling for instance was the lifestyle of the marriage for decades and decades the spouse went to the racetrack played the lottery went to Las Vegas is it dissipation when this sort of behavior they participated in together and went on for 20 years not a dissipation if you lose its dissipation if you part of the neural circuits what about plastic surgery if one spouse decides to go to Jim's wife and get lots of plastic surgery done well I think that yes yes cosmetic you know part of our profession is I could argue that both ways if a actress got cosmetic surgery to you know perfect some imperfections with her body or her face and it 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 then it's in my opinion it's considered dissipation give you an interesting proposition it's the case that I had where my client had breast cancer and underwent double mastectomy my recollection is about three or four years before the breakdown of the marriage and their divorcing and then during the divorcing process she went in and had plastic surgery reconstruction and 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 hopefully going to marry again and I think it's important for me in my life going forward is anticipation I think that's interesting it's an interesting argument that could be argued both ways absolutely did we come across that quite often yeah so here's another hypothetical I buy ya tickets to the World Series game for my boyfriend you really wanted the tickets is that dissipation I think it's dissipation any question I think it's a dissipation I I could see someone arguing that it's not that it's business development if the person is a in the sports industry or an agent but you know well how many tickets how many tickets did you buy - eight if she bought she bought a ticket sold family virtual okay so what I'm hearing here two excellent lawyers who could argue either way either way well that's the interesting thing about being is there is no right or wrong way to argue it if you're not prepared to argue both sides of the case you're not a good player well thank you very much we are out of time is there anything else that you would like to include on either marital misconduct or dissipation that people listening or viewing this podcast should should know sure don't waste your time on petty issues if the dissipation that you're looking at are looking to claim it is not significant don't waste your time your energy and your money if it's major and it's worthwhile your lawyer is gonna tell you it's worthwhile personally and if it is I agree with that you know 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 and it will counterbalance what you're paying in attorney's is thank you thank you both this isn't the last that you've heard from Candice and James you will hear from both of them again a new divorce matter thank you very much for listening and for watching if you like what you see please share it on your Facebook in your LinkedIn pages and at any time you can reach out to either James or Candice and or call them or view their bio and learn more about them WWWE Airmen lucam thank you thanks for joining us on this episode of divorce talk visit our website at www.clemson.edu/peach annal if you found value in this show we'd appreciate a rating be sure to tune in next time for another enlightening episode you