Dividing property in a divorce is often one of the more contentious issues that must be resolved before a couple goes their separate ways.
While courts are bound by their state’s statutes regarding property division (be it community property or equitable distribution), some may feel that they should be entitled to a larger portion of the marital pot because of their spouse’s irresponsible spending habits or financial mismanagement.
Although it may be tempting to make such claims, proving them can be much more difficult to substantiate and may be more expensive than it’s worth.
What is dissipation of assets?
Marital waste attempts to prove that one spouse in the marriage abused or intentionally squandered marital assets to deprive the other party of their fair share. The details will vary by jurisdiction, but most states have some type of statute to allow such a claim so that it can be taken into consideration when the court determines property allocations.
However, there are typically several factors that also need to exist for a waste claim to be validated.
For example, many states require that the dissipation of assets take place around the same time that the marriage broke down with the deliberate intent of depriving one spouse of the assets.
This means you cannot make a waste claim simply because you did not agree with your wife’s spending habits throughout the course of the marriage.
On the other hand, if she went out and racked up thousands on joint credit cards after separation or one of you filed for divorce, you may have a legitimate claim as this could be viewed as done with full knowledge that all marital debts will be split as well.
The expenditures also cannot benefit the marriage as a whole in any way. Withdrawing money from your 401K to pay off a personal debt might be considered waste; however, using that money to pay for attorney fees, alimony, spousal support or other basic living expenses probably will not.
Additionally, you will not likely succeed in your claim unless the waste is a substantial sum.
Many courts will consider money spent on an affair to be marital waste. Buying lavish gifts with marital funds or spending a significant amount of a vacation with your paramour would certainly be eligible for a claim of waste, but dinner and a movie one Saturday is not likely to hold much sway with the court.
Excessive gambling is also frequently brought up in divorce as a grounds for a dissipation claim, though with the advent of no-fault divorce, many courts are wary about getting too deep into aspects that blur the line of marital fault.
Will your marital waste claim hold up?
In practice, accusations of marital waste are frequently thrown around a lot more than they are actually argued in the courtroom.
You may feel that because your wife spent too much on clothes or was irresponsible with money that you should be entitled to some sort of compensation; however, that argument won’t get you very far unless it is an obscene amount of money.
If you have legitimate concerns that your soon-to-be ex has squandered significant marital assets with the deliberate intention of depriving you of your fair share, then consult with an attorney to determine whether you have a valid claim in the eyes of your state. You will also want to ensure that the estimated cost of gathering evidence is worth the potential payout.
Remember that even if a spouse were to have spent $2,000 of marital money on something irrelevant, you would most likely only be entitled to half of that amount. The cost of discovery and attorney fees to gather sufficient evidence may make the claim pointless after everything is said and done.
Mat Camp is a former Lexicon Services Online Editor, who focused on providing a comprehensive look into all aspects of the divorce experience. On MensDivorce.com, he concentrated on issues, such as parenting time, custodial rights, mediation, the division of assets, and so much more.
Mr. Camp used the wealth of experience of Cordell & Cordell attorneys to bring tangible answers to reader questions in Ask a Lawyer articles, as well as offer a step by step process through the divorce experience with Cordell & Cordell Co-Founder and Principal Partner Joseph E. Cordell in Divorce 101: A Guide for Men.
Mr. Camp used thorough research to highlight the challenging reality that those who go through divorce or child custody issues face. He helped foster the continued success of the Men’s Divorce Survival Guide, the Men’s Divorce Podcast, and the Men’s Divorce YouTube series “Attorney Bites.”