Many people worry that a spouse’s unilateral control of marital assets might lead to the disposal of said assets without notice or compensation to the unknowing party. Unfortunately, sometimes this can happen. However, you are not without recourse.
Depending upon when the assets are disposed or sold, there are a variety of options that might be available to you to pursue.
First, and most difficult is when assets are sold off prior to the filing for divorce. Here you are in a tricky area, as the Court will assume that the decision was a joint marital one UNLESS you can prove otherwise.
This is difficult, but not impossible. What you would need to do is request what is known as “unequal distribution” of whatever assets and liabilities might remain. The theory here is if your spouse has already unjustly helped him or herself to your marital share pre-filing, then you should be compensated by “unequal” distribution of what remains post-filing (typically all assets and liabilities are presumed to be equally divided, 50% each).
The most common element focused upon when arguing unequal distribution is called waste. Waste is the intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within 2 years prior to the filing of the petition. Waste is grounds for the offended spouse to ask for unequal distribution.
The test of whether a transaction constitutes a dissipation of marital property does not turn on whether the transaction worked to the advantage of both spouses. Instead, the pivotal consideration is whether the alleged miscreant-spouse INTENDED to engage in depletion, waste, or destruction of the marital assets to the disadvantage of the other person.
The misconduct necessary to support inclusion of dissipated assets in an equitable distribution scheme does not include mismanagement or simple squandering of marital assets in a manner of which the other spouse disapproves.
If you are bringing up issues of sold assets AFTER divorce has been filed, then you have many additional options.
One is enforcement of the standing temporary order (effective in most jurisdictions) not to dispose of assets. Caution: this order typically does not, in and of itself, stand for a basis for contempt but is the first warning shot by the Court that it will utilize such remedies if transgressions against assets continue.
Next, you can request an injunction which prevents the spouses from the sale or removal of any marital assets during the pending dissolution – that way if someone does so act then you have a basis to motion for contempt (something that, if granted, will also mean the offending party is likely to pay your enforcement related fees and costs).
Lastly, you have the option of arguing at final hearing that there has been a de facto partial distribution by virtue of the spouse’s acts and that you should have right to some other asset to make up for the advantage.
If there is a direct order from the Court NOT to dispose of an asset, then you have the option of suing the other party for contempt. This can come with a variety of punitive measures, including possible jail time. But that is not always going to be the outcome, so do not expect that merely selling assets will equal time in the pokey for your wayward spouse. It is possible, for example, that he or she had to sell the asset in order to support you, themselves, or the children during the dissolution, and if that is the case then it is not considered an advance at all and therefore not contempt – and also not eligible for equitable distribution offset.