What Are the Elements of Dissipation of Assets in a Divorce in Florida?
By Beverly Bird
Some people take “divorce planning” to an extreme. It’s one thing for a spouse to begin collecting copies of financial documents because he knows he’s going to need them when he files for divorce. It’s something else entirely if he begins transferring assets out of the marital estate so a court can’t award half of them to his partner. The marital estate is everything spouses acquire together while they’re married. Whether a spouse dissipates these assets intentionally, or whether he spends marital money on his paramour in the course of having an extramarital affair, divorce courts in Florida take a dim view of it.
Effect on Spousal Support
Florida is a no-fault divorce state. You can’t file for divorce because your spouse committed adultery or committed any other wrongdoing. However, if he dissipated marital assets, either by transferring title to the individual he had an affair with, or by spending excessive amounts of money on her, the Florida statutes allow judges to consider this when deciding issues of spousal support. An award of alimony to the injured spouse can’t be punitive, or punishment for the transgression, but the innocent spouse shouldn’t have to pay for her partner’s affair either. The court might order him to repay her the value of half of what he spent or transferred.
Effect on Equitable Distribution
Florida courts divide property in a divorce according to the laws of equitable distribution, or what seems fair to a judge. Dissipating assets affects the concept of fairness. If the marital estate was worth $250,000, and if one spouse depleted it of $100,000, this would leave only $150,000 for division between spouses at the time of divorce. The wronged spouse stands to receive only $75,000 worth of property, assuming a 50/50 division, rather than $125,000, because of her partner’s actions. This isn’t equitable, so Florida law allows a judge to award the injured spouse $125,000 in marital assets instead – her half of the $150,000 in remaining assets, plus half of the $100,000 her spouse removed from the marital estate.
Limitations of the Law
Florida law limits an injured spouse’s ability to recoup marital assets to some extent. Dissipation must occur after one spouse or the other has filed for divorce, or within two years preceding the date of the filing of the divorce petition. The two-year statute of limitations specifically addresses divorce planning, or the restructuring and removal of assets in an effort to avoid equitable distribution. This may leave some spouses out in the cold in adultery situations. For example, if your spouse committed adultery five years ago and he squandered significant assets on his paramour but you never realized it until a year ago, you generally can’t reclaim your portion of the assets he dissipated. Additionally, if you discovered what he did, but you remained married anyway, you’ve condoned his behavior. You usually can’t make a claim for either alimony or additional marital property as compensation for his wrongdoing.
If sufficient assets don’t remain in the marital estate to compensate an injured spouse for her partner’s dissipation of assets, Florida courts can and will look to her partner’s premarital or separately owned assets. Normally, this type of asset is protected from distribution in a divorce, but a judge can tap into these assets under certain circumstances and dissipation is one such circumstance.
Beverly Bird has been writing professionally since 1983. She is the author of several novels including the bestselling "Comes the Rain" and "With Every Breath." Bird also has extensive experience as a paralegal, primarily in the areas of divorce and family law, bankruptcy and estate law. She covers many legal topics in her articles.