Squandering the Nest Egg: Dissipation of Marital Assets

What can you do if your spouse is gambling, spending, going into debt, drinking away, or hiding away marital assets during your divorce? Dissipation of marital assets, or intentional waste/depletion of marital property in Florida is a serious concern. It can include excessive spending (outside of what was typical during the marriage), spending related to an extramarital affair, mismanagement of finances (accumulating credit card debt etc.), intentional waste of marital funds or assets, such as through gambling, and asset devaluation (for example destruction of property, withdrawing money from a 401K or withdrawing large sums in cash), diverting funds to friends or family members to shield it from the divorce process.

Florida Courts typically equitably divide all assets and debts acquired during the marriage. However, if it can be proven that one spouse dissipated assets, the court may adjust the division of assets to create a more fair result. The party proving dissipation of marital assets must establish that the assets in question were part of the marital estate; that the actions taken to deplete the assets occurred without the other spouse’s knowledge or consent; that the spending did not benefit the household/marriage; and that the wasteful behavior occurred during the marriage (particularly close to the time of separation). Florida courts can consider dissipation of assets that occurred after filing and within two years prior to filing for divorce, however in limited circumstances the court can look back further.

Potential Remedies

If dissipation is established, there are several potential remedies the court may consider:

• Unequal property division

• An award of 50% of the dissipated amount

• Allocating assets/debts as separate property

• Penalties

• Issuance of an Injunction

  If the dissipation is ongoing, it may be necessary to request that the court freeze certain marital assets during the pendency of the divorce.

  In proving dissipation, having the proper evidence is pivotal. Having the proper legal representation is important. You should monitor all accounts closely and document any questionable transactions. Your attorney may need to conduct further discovery to get a full financial picture and it may be necessary to utilize a forensic accountant to trace hidden assets. Contact Cody Law, PLLC to discuss your specific situation and whether an unequal division of marital property may be appropriate, as well as other remedies, due to dissipation of marital assets.

Go Away and Leave Me Alone: Florida Injunctions for Protection

An Injunction (sometimes referred to as a restraining order) is a Court Order which directs a person not to have contact with another. An Injunction can prevent abuse and threats of abuse and can prevent an abuser from contacting or coming near a victim. Florida has various forms of injunction available:

• Domestic Violence Injunction: This applies to people who live in the same household or who have children with each other. “Family” can include a spouse, an intimate partner who you live with but are not married to, blood relatives, adopted children, step parents or step children.

• Dating Violence Injunction: This applies to people who are or have been in an intimate or dating relationship and who have interacted with their abuser within the six months prior to filing the petition for injunction.

• Sexual Violence Injunction: This applies to people who do not live together or share children together but when a sexual battery has been committed and reported to law enforcement.

• Repeat Violence Injunction: This applies when none of the other categories of relationship (i.e. Domestic, dating, or sexual) apply. This type of injunction can be used between neighbors, coworkers, former friends etc. For this type of injunction to apply there must have been at least two incidents of physical violence, threats, or stalking and one or more incident must have occurred within the six months prior to filing the petition for injunction.

• Stalking Injunction: These are intended to protect a person from being followed, harassed, or cyberstalked by another person. For this type of injunction there does not need to have been any prior relationship (this can apply to persons such as former friends, acquaintances, neighbors, or coworkers etc.). Florida defines stalking as “Willfully, maliciously, and repeatedly following, harassing, or cyberstalking another person.” Harassment is defined as “engaging in a course of conduct that causes substantial emotional distress and serves no legitimate purpose.” Cyberstalking is defined as “repeated, unwanted online contact or surveillance that results in distress to the person targeted.”

Once the correct type of injunction is determined, the process is initiated by the filing of a Petition for Injunction. The injunction process is designed to be accessible to parties with and without counsel, so an unrepresented individual can go to the family law department of the County Courthouse and access the forms to complete and file, during business hours. If the incident occurs outside of business hours then abuse should be reported to law enforcement, who can contact the clerk if it is determined an injunction is needed. Although the process is accessible with or without counsel, having representation throughout the process can be beneficial in ensuring you obtain the protection that is necessary.

When the forms are completed and submitted to the Clerk, a determination can be made immediately of whether a temporary injunction will issue. If a temporary injunction is entered by the judge, the violator will be served a copy of the petition, notice of hearing and the temporary injunction. A hearing on the injunction will be set within 15 days. The hearing will be evidentiary, meaning evidence can be admitted and testimony offered. Having experienced counsel to represent your interests can be extremely beneficial during the hearing, to make sure you can show the judge the required elements to enter the injunction on a permanent basis. Counsel can also facilitate a possible consent agreement with the other party and/or their counsel so that a hearing may not be necessary to obtain the relief sought.

Contact Cody Law in St. Augustine, Florida to learn more about the process and for guidance in obtaining an injunction for protection.