The worst stereotype of divorce is that of a knock-down courtroom fight. Actually, many Floridians divorce amicably enough that they can negotiate or mediate a marital settlement agreement. But when one spouse suspects (or knows) that the other is bringing to the table something less than all their money and assets, it may be necessary to bring all legal tools to the dispute.
An experienced family lawyer will have developed a network of professional experts who can apply their training and experience to uncover hidden, undervalued, depleted or wasted assets and to ascertain accurate values. Divorcing clients may use forensic accountants, business analysts, private investigators, appraisers and others.
(We previously published a post in which we explained ways in which spouses have tried to hide or dissipate property or money.)
Full, accurate disclosure
Without all income, marital and nonmarital assets, and debts fairly and timely on the table, an equitable division of marital property is impossible. Nor are appropriate alimony and child support orders.
In Florida divorce, each litigant must comply with a complicated, lengthy mandatory financial disclosure rule early in the process. The rule requires production under oath of a myriad of financial documents and property records as well as a financial affidavit and child support guidelines worksheets, if applicable. Throughout the proceedings, any changes to income, assets and debts require each party to amend their initial disclosures.
Deviation from these rules could result in sanctions, contempt of court or other negative results.
In preparation for trial, each party conducts discovery that includes taking oral and written testimony of the other party, requesting documents and using other techniques. A party’s lawyer will collaborate with retained experts to assist with finding clues leading to discovery of dissipated or hidden assets.
Issues at trial
Discovery and investigation may uncover evidence of hidden or wasted assets that leads to a settlement and averts a trial. If not, the judge at trial will decide issues of property division, alimony and child support after hearing and reviewing the evidence.
Florida statute directs the court to presume that equal division of marital property (and debt) is the correct approach unless relevant circumstances make that unfair. One relevant factor is whether a spouse has engaged in “intentional dissipation, waste, depletion or destruction of marital assets after the filing of the petition or within two years prior to the filing of the petition.”
An unequal division of property and debt could mean that the judge assigns an asset wrongly dissipated to the spouse who depleted it. The court must support an unequal distribution by substantial evidence.
Florida courts have said that an unequal distribution based on wrongful asset depletion requires a finding of misconduct during a time when the marriage had broken down irreconcilably. The asset or fund dissipated must have been used for a purpose only benefiting the depleting spouse without benefit to the marriage.