When your spouse and you are going through a divorce, there are many things that you must inevitably face and certain other things that you would prefer not to face (but many spouses do). For many divorcing couples, the separation period can be a period of high financial stress. Sometimes, marital assets may be dissipated in order to pay for the increased amount of expenses created by the separation. Other times, marital assets get dissipated due to the misconduct of one of the spouses. In these situations, one spouse may ask the court to resolve whether or not that dissipated asset is included in the equitable distribution. For advice and representation with regard to the dissipation of assets and equitable distribution questions and issues, make sure to contact an experienced Florida equitable distribution attorney.
A divorce case from the Florida Panhandle was an example of what isn’t misconduct when it comes to asset dissipation. During the period of separation and litigation of the divorce case, the husband, Justin, withdrew a substantial amount of funds from a thrift savings plan he had through his employer, the U.S. Air Force. The wife, Janie, allegedly knew nothing of the withdrawal. Withdrawals normally required both spouses’ signatures, but Justin was able to obtain a waiver that allowed him to make the withdrawals without Janie’s signature.
According to Justin, he made the $17,000 withdrawal (and used the money) to pay marital debts along with the living expenses he was incurring during the pendency of the divorce. At the couple’s divorce trial, though, the court concluded that the wife was entitled to a share of the withdrawal (and the $3,000 withdrawal penalty) Justin made, so the court ordered the husband to pay the wife $10,000.
The husband appealed and won his appellate argument regarding the withdrawal. The court explained that, under Florida law, it is generally improper to include the amount of dissipation of assets that occurs during the pendency of a divorce in a couple’s equitable distribution. The biggest exception to that rule occurs when one spouse’s dissipation of marital assets occurs through that spouse’s misconduct.
In Justin’s case, he testified that he used the money he withdrew to pay marital debts, pay his expenses, and pay his children’s expenses. In order to be entitled to have such a withdrawal included in an equitable distribution, one spouse must argue that the other spouse was guilty of misconduct, and the trial court must make a finding that misconduct occurred. The trial court’s judgment in Justin and Janie’s case made no such finding.
So what does intentional misconduct sufficient to trigger an equitable distribution look like? One perhaps imagines, as an example, a spouse who, during the pendency of the divorce, drains the marital bank accounts and then absconds with the money and hides it. Specifically, though, what Florida law says you must demonstrate in order to get this finding of misconduct and get the dissipation included in your equitable distribution is that your spouse “used marital funds for his or her own benefit and for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown.” This degree of malfeasance is something more than just proving that your spouse mismanaged or squandered an asset (or assets) and lost money during the divorce; it requires proof of intentional bad actions.
If you find yourself facing a divorce, especially a heavily contested action, make sure you have the representation you need on your side. Skilled Miami divorce attorney Sara Saba has been providing effective advocacy for her clients for more than 13 years. Our team is dedicated solely to meeting your family law needs. Contact us online or by calling (305) 450-8009 to schedule your consultation. Hablamos Español.
More blog posts:
What Is ‘Donative Intent’ and How Can Proof of It Help You Achieve a Successful Outcome in Your Florida Divorce Case?, Miami Divorce Lawyer Blog, March 22, 2018
Multi-Million Dollar Appreciation of Florida Husband’s Stock Portfolio Was 100% a Marital Asset Because He Lacked Evidence Proving Otherwise, Miami Divorce Lawyer Blog, March 6, 2018