Dealing with a Spouse Who Is Intentionally Hiding or Squandering Marital Assets Pending Divorce

Married couples spend years building up assets in the hope of gaining financial stability for their family, and this effort often requires many sacrifices to produce the desired results. Consequently, if a couple later divorces, dividing this property frequently becomes a contentious and highly litigated issue. Relinquishing control over something that required considerable effort is understandably difficult. However, unless a prenuptial agreement exists, the division of marital property is mandated by Florida law. Typically, marital property is equally divided between spouses under the premise that each provided equivalent contributions to the acquisition of the assets. But, if there are concerns about a spouse dissipating assets during the marriage and/or while the divorce is pending, the court can take steps to rein in this behavior if sufficient evidence is brought to its attention. Basically, the law does not want one spouse to unfairly and unilaterally gain a greater share of the marital property at the other spouse’s expense, and potentially leave the innocent party with no financial resources following the divorce decree. A woman from Florida is facing this situation as she seeks to stem the further loss of marital property to her husband’s mistress. The woman filed for divorce earlier this year after learning of the affair, and believes the amount that actually benefited the other woman is far in excess of the $11 million claimed by her husband. A discussion of what a spouse can do to stop dissipation, or waste, of marital property, as well as how to recover the squandered funds in a divorce, will follow below.

Actions Considered Dissipation of Assets

A spouse is considered to have dissipated marital assets if he/she attempts to hide or waste the assets, and thereby deprives the other spouse of the benefits the property provides. Dissipation can include transferring money to family members, wiring money to an overseas bank account, or intentionally running up huge credit card debts to punish the other spouse for getting divorced. Further, changing the beneficiary of a life insurance from a spouse to a mistress, for example, would also be viewed as waste since the intent is to deny the spouse the benefit and use of the proceeds. If this type of behavior is suspected, action must be taken as soon as possible to prevent further, and potentially unrecoverable, losses of marital property.

Injunctions

Florida law allows spouses to petition the court for an injunction to prevent the other spouse from disposing of or concealing the property. This means the spouse named in the injunction is prohibited from removing the property from the state or reducing its value in any way without the other spouse’s permission. If a spouse violates the injunction, the other spouse may file a petition with the court to hold him/her in contempt, and may also include a demand for the spouse to deposit a sum of money with the court to cover the value of the lost assets, if they are unrecoverable, as an incentive to prevent further violations. The payment is also usually necessary to avoid a jail sentence for contempt.

Property Division in Light of Lost Assets

If a spouse did dissipate marital property, this behavior can have a significant effect on the division of property in a divorce. The court will value assets lost to dissipation, and award a greater amount of the remaining marital property to the innocent spouse. If the remaining marital property is insufficient to cover the value of the wasted assets, the court will look to the guilty spouse’s separate property to find restitution for the other party.

Get Help

If you are concerned a spouse is disposing of assets without your knowledge or consent, talk to a family law attorney as soon as possible. The quicker legal action is taken, the greater the possibility of tracking and recovering the property. The All Family Law Group, P.A. represents clients throughout the Tampa Bay area in family law matters, including property division, and can help you get the settlement you deserve.  Contact the Tampa divorce attorneys and family lawyers at All Family Law Group, P.A. in Tampa Bay at 813-816-2232 for a consultation at no charge or email us.

by Lynette Silon-Laguna Google+

Handling Retirement Funds in a Divorce

Divorce comes with many decisions, some more complex than others. Some of the most difficult decisions revolve around distribution of assets. In Florida, property and other assets acquired during the marriage are considered marital assets, belonging to both parties. This generally includes any retirement assets accumulated in retirement or pension accounts. Many couples fail to immediately address these funds in a divorce, but that can be a mistake. It is important to protect your retirement accounts when you and your spouse end your marriage.

Identify Retirement Accounts

Although you normally may not be paying much attention to your retirement accounts, when a divorce is imminent it is best to review these issues as soon as possible. If you have had several long-term jobs, you could have several or more pensions or retirement accounts. For this reason, it is helpful to keep good records of the companies and funds that you have accumulated. The dates of the retirement funds are critical since they will determine whether the money was accumulated during the marriage. There are issues with regards to these accounts that must be addressed, including taxation, and beneficiaries.

Complex Concerns

Retirement fund concerns can be quite complex, especially when several accounts, or multiple marriages are involved. If you need to transfer funds from an IRA or other savings account, it is necessary to do it properly. Incorrect transfer of funds could cause the transaction to be considered a full distribution, which may result in tax penalties. Another consideration regarding these accounts is the designated beneficiary. Remember to update these designations after the divorce in order to properly preserve your accounts and achieve the desired stipulations.

Discuss Retirement Accounts

While these accounts may be one of the last things on your mind as you navigate your divorce, they are important to your future. It is best to discuss your retirement accounts with your divorce attorney as soon as possible. You will likely need to request records from your employers (or former employers) that indicate the specific dates of participation, along with the amount of money that was added. This information will be essential when determining marital assets.

Benefit and Contribution Plans

The distribution of funds will depend on the type of account that is utilized. There are two main types of accounts including the defined-benefit plan and the defined-contribution plan. With defined-benefit plans, the spouse may have the opportunity to take a lump-sum payment, called a “cash-out” value. Defined-contribution plans require calculation of vesting percentages. These computations can become complicated, especially when there are multiple accounts to consider. There are also other types of retirement plans that need to be reviewed during a divorce, such as military retirement accounts and government pensions. In general, couples must equitably distribute funds in any accounts that had contributions during the marriage.

Because of the highly complex nature of retirement funds in a divorce, it is critical that you discuss your accounts with a skilled divorce attorney as quickly as possible. If you are seeking a divorce, contact the Tampa divorce attorneys and bankruptcy lawyers at All Family Law Group, P.A. in Tampa Bay at 813-816-2232 for a consultation at no charge or email us.

By Lynette Silon-Laguna Google+

When Your House is No Longer Your Home

After years of marriage, your home may be one of, if not the most, significant assets owned by you and your spouse. When facing a divorce, the disposition of the marital home will be a critical issue and dependent upon a variety of circumstances. Under Florida law, the judge presiding over the divorce will distribute marital assets and liabilities between the spouses. Unless otherwise justified under the circumstances of the particular case, this division should be equal between each individual.

Marital vs. Nonmarital Property

With some exceptions, nonmarital assets include property acquired by either spouse prior to the marriage. On the other hand, marital property generally includes property acquired during the marriage, without regard as to whose name the property was titled in. For example, after two years of marriage, Suzy and Tom purchase a house. This house would be marital property under Florida law. Marital property can also include an enhancement in value of nonmarital assets that occur during the marriage. For example, Gene purchased a house 10 years before marrying Sam. Sam is a contractor and did substantial work to the home during the marriage using marital funds. The appreciation may be considered a marital asset even though the home was purchased before the marriage by Gene.

Equitable Distribution

During a divorce proceeding the presiding judge will first set aside each spouse’s nonmarital property, and then consider the marital property for distribution between the parties. The judge will distribute the marital property equally, unless fairness requires otherwise based upon the following factors:

• each party’s contribution to the marriage and/or to the acquisition or appreciation of the asset;
• the duration of the marriage and relative economic position of the parties;
• any sacrifice made by a party with regard to their career or education for the sake of the other party;
• the need of such asset for use in a business or profession;
• any intentional impairment of the asset by a party after the filing for divorce or within the preceding two-year period; and
• any other factor necessary to do substantial justice.

Disposition of the Marital Home

Division of the home creates an obvious problem in a divorce. Many times neither party can support the mortgage payment due on the family residence, which will require its sale and distribution of the proceeds based on the factors listed above. On the other side of the spectrum, in situations where there is substantial equity, neither party may have the resources to buy the other party’s share of the equity, which will also necessitate a sale and distribution of the proceeds as outlined above. Other factors may drive the judge’s decision outside of the relative economics of the property. If the marital home is a residence for a younger child of the parties, the court may find that in the best interest of that child the custodial parent should remain in the home if financially feasible.

Get the Assistance You Need

The distribution of marital assets is a fact specific analysis that requires knowledge and experience. The attorneys of All Family Law Group, P.A. are knowledgeable Tampa divorce attorneys who have experience in the identification and distribution of marital and nonmarital assets and liabilities. If you are faced with divorce, we can help protect and assert your rights under Florida law. Contact the Tampa family and divorce lawyers at All Family Law Group, P.A. in Tampa Bay at 813-816-2232 for a consultation at no charge or email us.

By Lynette Silon-Laguna Google+

Question: I bought my house 5 mos before I got married, now 18 years later I want to get a divorce, is my husband entitled to 1/2 of house -the house is payed for, and I am divorcing him because he is an alcoholic and spends all his money on drinking - I always bought everything that was needed for the house?

In a divorce, one of the more difficult areas for divorce attorneys may be determining the distribution of the parties' assets.  First it must be determined what assets are non-marital.  Normally, if an asset is purchased prior to the marriage then it would be considered premarital property and the party who purchased it prior to the marriage will receive it, except as stated in Fla. Statute § 61.075 (6)(a)1.b.: "The enhancement in value and appreciation of non-marital assets resulting either from the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds or other forms of marital assets, or both."

In this case, the purchase of a house prior to marriage would make it non-marital, unless the value and appreciation of the house has resulted from either the contribution or expenditure of marital funds.  For example, the payment of the mortgage from marital funds would mean that the increase in value due to the payments would be marital and subject to division in the divorce.  Fla. Statute § 61.075(6)(a)1.a. defines marital assets and liabilities as those acquired or incurred during the marriage, individually by either spouse or the spouses jointly. So any income, assets that you acquired individually during the marriage are considered marital and likewise for your husband.  Furthermore, if marital funds are used to enhance the value of the house, then the appreciated value would be subject to division.  In addition, if the value of the property increases due to the efforts (i.e. physical) of either party during the marriage than that increase is subject to division.  Note that it is only the appreciation of value which is subject to distribution.  The remainder of the equity in the home would remain with the party who purchased the home prior to marriage.

The court in determining distribution of marital assets and debts begins with the premise that they should be equally divided between the parties; however, the court also looks at the factors listed in Fla. Statute § 61.075(1) to determine if an unequal distribution is required.  You say in your question that you have always bought everything that was needed for the house.  Therefore, it is necessary to  determine whether one of the factors in § 61.075(1) will apply under your circumstances, so that you may obtain a larger division of the marital assets.  It would be beneficial to contact a knowledgeable divorce attorney who can help you get the best division of your assets considering all of the circumstances involved.

Visit our website for more information on property and debt distribution in divorce.

By Lynette Silon-Laguna

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