delivered the opinion of the court:
Respondent Carole O’Neill appeals from the trial court’s order, which disposed of the marital property, and determined maintenance, child support, аnd payment of attorney fees. In its order, the trial court found no dissipation of assets and denied respondent’s claim for petitioner Stephen O’Neill’s share of thе residence.
Respondent argues on appeal that the trial court erred in not finding dissipation by petitioner, and in not awarding the entire residence asset to her, pursuant to the provisions of sections 504(b) and 503(g) of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1987, ch. 40, pars. 504(b), 503(g)). Because of our holding below, we need not specifically discuss the court’s division of the marital residence.
During the marriage, petitioner was charged with attempt to commit rape. He declarеd his innocence to his wife and, with her approval, used $15,000 of marital funds to hire defense counsel. He was convicted and, subsequently, admitted his guilt. The evidence given at the hearing on the property, division did not indicate the marriage was undergoing an irreconcilable breakdown at the time of the $15,000 expenditure for attorney feеs. Respondent, in answer to the court’s question, stated that she did not know if she would have approved the $15,000 payment had she been aware of her husband’s guilt. Two of the factors the trial court is to consider in dividing marital property are the “contribution or dissipation of each party.” Ill. Rev. Stat. 1987, ch. 40, par. 503(d)(1).
The trial court determined thеre was no dissipation. The main asset was the equity in the family home, and this real estate interest was split equally between the parties, subject, however, to respondent’s use of the property for the benefit of the children under the provisions of section 503(d)(4) of the Act (Ill. Rev. Stat. 1987, ch. 40, par. 503(d)(4)).
It is unclear whether the trial court’s decisiоn was based on the various appellate court cases inferring dissipation is limited to a period of time when there was an irreconcilable breakdown of the marriage (see In re Marriage of Partyka (1987),
The reputed theory or, аs some may say, rule of law, evolved from an innocuous statement in Klingberg: In that case, it was clear the husband wrongfully used marital' funds to prepay child support paymеnts that were an obligation from a prior marriage. This wrongful use took place when the parties of the current marriage were separated. The statemеnt from Klingberg is as follows:
“Rather, the respondent’s action was designed to use marital property for his sole benefit and for a purpose unrelated to the marriаge, at a time that the marriage was undergoing an irreconcilable breakdown.” (Emphasis added.) (Klingberg,68 Ill. App. 3d at 517 ,386 N.E.2d at 521 .)
This statement is consistent with the case law prior to the Octobеr 1, 1977, effective date of the Act, as is illustrated by Gercke v. Gercke (1928),
Since October 1, 1977, section 503(d) has provided that the court:
“[S]hall divide the marital property without regard to marital misconduct in just proportions considering all relevant factors, including:
(1) the contribution or dissipation of each party in the acquisition, preservаtion, or depreciation or appreciation in value, of the marital and non-marital property, including the contribution of a spouse as a homemaker or to the family unit.” (Ill. Rev. Stat. 1987, ch. 40, par. 503(d).)
No provision within the Act limits dissipation to a time when the marriage is undergoing an irreconcilable breakdown. Similarly, we know of no argument ever having been made suggesting the contribution benefits should be considered only if they took place during a specific time of the marriage.
It is assumed that the theory for limiting the time period for which dissipation can be considered evolved from the quoted sentence from Klingberg. Of the cited cases, all cite Klingberg excеpt for Partyka, and Partyka cites Hellwig, which, in turn, has cited Klingberg. None of the cited cases have dealt with dissipation which had taken place prior to the irreсoncilable breakdown of the marriage. Klingberg correctly stated the law as it existed prior to the Act, but the Act adopted the concept of marital property, greatly expanding the rights of those in the marital partnership.
Nothing in the history of the Act would indicate the consideration of dissipation should be restricted tо a time period different from the consideration period for contribution. We have been unable to find a single case which presents an analysis of why the time оf dissipation should be restricted to the time of irreconcilable breakdown of the marriage. If a spouse dissipates marital property, for example, by excessive gambling or extravagant purchases of clothing, why should the other spouse be punished for continuing with the marriage? The reasons for maintaining a marriage, inсluding the benefit to children and religious requirements, are important. Logic calls for the consideration of dissipation during the same time period a court would cоnsider contribution.
Some will fear that our opinion will open Pandora’s box, creating havoc by encouraging parties to argue dissipation exists because оf every insignificant wasteful act. The present case involves an action which seriously affected the marital estate and cannot be considered insignificаnt. Trial courts have the ability to weigh the facts and separate dissipation from generally accepted expenditures. Whether a given course of conduct constitutes dissipation within the meaning of the Act depends on the facts of the particular case. In re Marriage of Siegel (1984),
As to whether the commission of a criminal offense by one spouse, with the economic losses which naturally flow from it,' can be considered dissipation appears to be an issue of first imprеssion. Once again, every case will depend on its own facts. The facts in the present case require a finding of dissipation.
Petitioner contends dissipation cannot be considered because respondent acquiesced in the $15,000 payment of attorney fees. (In re Marriage of Aud (1986),
Acquiescence is defined as passive assent or agreement without protest, and we do not intend to indicate by this opinion that its presence bars a finding of dissipation, or even that it creates a presumption against dissipation. As we have indicated, the nondissipating spouse may аcquiesce in conduct that dissipates assets for various reasons, including family harmony. The dissipation may still be a factor to consider in dividing the family assets. A different result mаy take place when both spouses agree to and participate in the dissipation. Acquiescence may become a factor to be considered by the court in determining whether there is dissipation but, in this case, the fact that respondent was uncertain as to what she would have done or how she would have аcted if she had been initially told of petitioner’s guilt is not justification for the decision against dissipation. The trial court was in error in finding that dissipation should not be considerеd in the distribution of the marital assets.
Because this matter must be remanded for further consideration of property distribution, we find that it is not necessary to consider other arguments by respondent.
Reversed and remanded to the trial court for determining the division of marital assets consistent with the dictates of this opinion.
Reversed and remanded with directions.
KNECHT and GREEN, JJ., concur.