Lawyer's secret: Yes, you can punish your
spouse and his or her new lover.
Illinois law provides a spouse with remedy to attack a cheating spouse. If you think your
spouse is cheating, you can bring what is called a “dissipation claim” against the cheater. The
dissipation claim process is very painful for the cheating spouse. It will provide you with rights to confront
your spouse’s new lover at a deposition, and it may allow you to subpoena the new lover’s financial records.
Also, a dissipation claim may prove that your spouse has spent substantial amounts on dating this person, and all that
money must be returned to the marriage.
Dissipation claims are a unique feature to Illinois law because establishing a claim is fairly easy, and the
legal burden is then placed on the cheating spouse to prove actions and spending behaviors were innocent. If the cheating
spouse cannot prove that their spending behavior was inocent, then the Court presumes that the spending of money was for purposes
outside of the marriage (and not for the family). The cheating spouse must then return the money to the marital estate.
Dissipation claims have always been considered
the "strong arm" of the Illinois Divorce Act. If you are facing a dissipation claim, most attorneys would
strongly advise you to collect documents and materials that prove all of your monetary expenditures were for family purposes,
and not for purposes of dating someone other than your spouse. If at all possible, have your new boyfriend or girlfriend
spend money on the date so that you can keep your dating (and the costs of dating) out of your divorce.
Illinois law continues to entertain what is called an “alienation of affections” claim, where you can also attack
the new lover. These types of claims are usually brought as a separate lawsuit at conclusion of the divorce. Alienation
of Affections suits are not available in all States, but Illinois continues to allow for them. A spouse wanting to bring
this type of suit should discuss the option with his or her lawyer. If the new lover works for the same company
as your spouse, the claim can likely be brought against the employer too. These lawsuits are sometimes
very valuable, and worth while to talk to an attorney about the process.
A spouse considereing either a dissipation claim or alienation of affections case,
should obtain all the information he or she can regarding your spouse's spending habits and receipts of money spent on someone
else. If your spouse is involved with another person, odds are that family money went towards hotels, nice restaurants,
romantic trips and weekends. Obtaining documents to support your claim is important. An attorney can help
a spouse dig for hard to find receipts with the assistance of subpoenas (a subpoena is a legal device whereby an attorney
can force banks, retailers, and other institutions to provide detailed information on a cheating spouse- hotel records can
also be obtained).
The digging for information usually proves to be very painful and embarrassing
for the cheating spouse.
If you have any questions related to this topic,
please contact Paul D. Nordini at (630) 416-6600
or email him