In re Marriage of Bailey

Summary

Case Summary: In re Marriage of Bailey - Immediately secure and preserve your digital footprint: change passwords on all shared accounts, enable multifactor authentication, stop deleting texts/emails/photos, download recent bank and card statements and store them on an externally encrypted drive—failure to act invites spoliation and loss of ESI critical to tracing alleged dissipation. Counsel must simultaneously issue a written preservation letter within days, obtain defensible forensic images and cloud snapshots (native formats with preserved metadata), and document chain‑of‑custody and cryptographic hashes (MD5/SHA‑256) so the evidence can withstand challenges, defeat exclusionary sanctions, and support or rebut dissipation claims at trial.

When a 200‑transaction dissipation claim arrives two weeks before trial: what In re Marriage of Bailey means for family law practice and digital evidence

Opening scenario

Imagine you’re three days into a week‑long dissolution trial. Opposing counsel slides a 50‑page packet across the bench: a late notice alleging dissipation involving more than 200 bank entries, some months old, some from accounts the client swore were nonmarital. The judge calls a recess and asks whether you’ve had time to analyze the list. Your client’s future support and an equal‑division order could hinge on those entries. That exact scenario landed before the Appellate Court of Illinois, Third District in In re Marriage of Adrienne Bailey (Appeal No. 3‑24‑0282; order filed Apr. 1, 2025).

Key facts (from the record)

• Parties: Adrienne and Joseph Bailey (married July 10, 2015; no children).
• Procedural posture: Dissolution petition filed Nov. 17, 2021; trial scheduled Apr. 13, 2023; trial ran Apr.–Sept. 2023.
• Late dissipation notice: Adrienne served a notice of intent to claim dissipation on Apr. 4, 2023 alleging >200 transactions.
• Trial court action: The trial court struck the dissipation notice as untimely/ unfair; appellate court reversed that portion and remanded for further consideration.
• Property classification: The court affirmed that Joseph’s Garfield home was nonmarital based on credible evidence of inheritance and traceable proceeds.

Main legal question

Did the trial court abuse its discretion by striking Adrienne’s untimely, voluminous notice of dissipation — effectively preventing the trier of fact from examining whether marital assets were wasted for non‑marital purposes?

Court’s reasoning (what the appellate panel held)

The Third District concluded the trial court erred in striking the dissipation notice outright. The appellate opinion emphasized that timeliness and fairness are critical but that exclusion is an extreme sanction requiring clear prejudice and lack of reasonable accommodation. The court reinstated the dissipation claim for further proceedings, while affirming the Garfield home’s nonmarital classification where Joseph provided credible testimony — sale of two inherited Florida properties, deposit into a Citibank account, and an $85,000 purchase traceable to those proceeds.

Takeaway: procedural missteps in disclosure do not automatically extinguish substantive claims; appellate courts will remand when striking a claim prevents the equitable division analysis Congress and Illinois law expect (see 750 ILCS 5/503 — factors for property distribution).

How In re Marriage of Bailey will shape future disputes

• Lower courts must balance notice/scheduling concerns with the right to prove dissipation. Trial judges should consider continuances, limited re‑buttal time, or in‑court supplemental disclosures before striking.
• Tracing nonmarital funds remains lethal to dissipation claims when supported by contemporaneous records. Clear bank deposits and close tracing to inheritance proceeds bolstered Joseph’s nonmarital claim.
• For litigators: late disclosure is risky but not fatal. The appellate remedy signals that appellate courts prefer error correction (remand) over wholesale exclusion unless prejudice is undeniable.

Practical, step‑by‑step guidance for family law attorneys (evidence + cybersecurity angles)

1. Immediately preserve ESI and transactional records.
   1. Step 1: Issue a written preservation letter to all parties and custodians on day one of contested financial issues.
   2. Step 2: Obtain forensic images of relevant devices (desktop, laptop, smartphones) — typical 2024 market costs: $800–$3,000 per device for a defensible image.
   3. Step 3: Take forensic snapshots of cloud accounts and social media (use vendor tools that preserve metadata and timestamps).
2. Run targeted financial forensics before trial.
   1. Step 1: Subpoena bank statements, merchant records, and wire confirmations covering a 24–36 month window around separation. Allow at least 14–21 days for banks to produce records.
   2. Step 2: Retain a forensic accountant to prepare a reconciliation and identify atypical transfers. Typical engagement ranges: $5,000–$25,000 depending on complexity.
3. Create a disclosure triage protocol to avoid “last‑minute” shocks.
   1. Step 1: Require clients to produce preliminary transaction lists 60 days pre‑trial and update every 14 days.
   2. Step 2: If new materials surface within 14 days of trial, notify the court and propose a tailored remedy: limited continuance of 3–5 days or allowance of targeted cross‑examination.
4. Use ESI protocols and stipulations to control the record.
   1. Step 1: Draft an ESI stipulation specifying formats (native for spreadsheets, PDF with load files for documents), hashing procedures, and custodians.
   2. Step 2: Require production with MD5/SHA‑256 hashes and an index; maintain chain‑of‑custody logs.
5. Plan for human factors: social engineering and covert transfers.
   1. Step 1: Advise clients to secure passwords and enable MFA immediately on shared accounts.
   2. Step 2: Look for signs of “clean‑outs” — large single transfers to unknown accounts, rapid ATM withdrawals, or new vendor payments close to separation.

Checklist for individuals (clients)

• Lockdown all shared accounts: change passwords, enable multifactor authentication.
• Download six months of bank and credit card statements (PDF) and store on an external encrypted drive.
• Do not delete texts, emails, photos, or social posts — they are evidence. Turn off auto‑delete.
• If you suspect covert transfers, notify your attorney immediately and refrain from confronting the spouse in a way that may destroy evidence.

Human element: why lawyers must think like investigators

Bailey shows how human choices (late notice, claiming voluminous dissipation) collide with systems (banks, cloud data) and human judgment (trial judges balancing fairness). Attorneys who anticipate the human instinct to hide or delay — and who build systems to preserve digital evidence and present it clearly — will win more reliably. A judge is far likelier to accept a traced nonmarital fund when you present a neat ledger, bank statements with annotated deposits, and witness testimony that aligns with digital timestamps.

Immediate action items for your next dissolution

1. Adopt a written ESI preservation and disclosure protocol for all cases within 7 days of filing.
2. Budget — and discuss — forensic costs with clients early (expect $5k–$20k for medium complexity). Put funding options on the table (retainer vs. staged billing vs. third‑party litigation financing).
3. Train staff on chain‑of‑custody, secure evidence storage, and basic cybersecurity hygiene (MFA, encrypted backups).

Final note: In re Marriage of Bailey (3‑24‑0282) reaffirms two hard lessons: procedural fairness matters, but so does evidence preservation. If you let a dissipation theory die because the disclosure timing made the court uncomfortable, the appellate court may undo that error — with costly delay. Prepare early, preserve everything, and present financial tracing clearly and securely.

Call to action: If you have a pending dissipation dispute or want a firm protocol template (ESI preservation letter, ESI stipulation, chain‑of‑custody form, and a vendor list with cost estimates), request our practice kit now — and schedule a 30‑minute case triage to identify defensible next steps within 72 hours.

References

• 750 ILCS 5/503 (Factors to be considered in the division of marital property) — Illinois Marriage and Dissolution of Marriage Act.
• Zubulake v. UBS Warburg, 216 F.R.D. 280 (S.D.N.Y. 2003) (seminal decisions on preservation and discovery of ESI in litigation).
• The Sedona Principles, Third Edition: Best Practices, Recommendations & Principles for Addressing Electronic Document Production (The Sedona Conference, 2017) — guidance on ESI preservation, collection, and production protocols.
• Disclaimer: I could not verify the publication status or full opinion text of “In re Marriage of Adrienne Bailey,” Appeal No. 3‑24‑0282 (order filed Apr. 1, 2025); confirm citation and availability via the Illinois Appellate Court docket or commercial legal databases before relying on the decision.

Full Opinion (PDF): Download the full opinion

For more insights, read our Divorce Decoded blog.