The Penalty for Hiding Assets During a Divorce
By Jim Thomas
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During a bitter divorce, one or both parties might try to hide marital assets to benefit financially from the breakup and punish their spouse. If you are thinking about hiding assets, take a moment to reflect on what you're considering. Hiding assets is a reckless action. If you get caught -- and the odds are you will -- penalties can run the gamut, from a property settlement that allocates a much greater amount of the marital assets to your soon-to-be ex-spouse, contempt of court or criminal charges for fraud or perjury.
Marital assets are divided in accordance with either a community property or equitable distribution standard, depending on the state. In a community property state, marital assets are split 50/50 between spouses. In an equitable distribution state, the court starts with a presumption that marital assets should be subject to a 50/50 split, but allows parties to introduce evidence that they deserve a bigger share based on various factors, such as their large contribution to marital assets or the lesser earnings prospects of a spouse.
Hiding Marital Assets
Spouses have hidden assets in almost every imaginable way. For example, a spouse can transfer assets to a relative or friend through phony loans, bury cash in the basement, fail to divulge property he owns or launder cash through his business. If you suspect your spouse has hidden assets from you, there are a number of ways to flush them out. An investigator or forensic accountant can thoroughly examine income tax returns, public records and bill statements. Your attorney can submit questions to your spouse, through written interrogatories and oral depositions, in an attempt to find hidden assets. However, as a "The New York Times" article notes, although your suspicions might be justified, it's "what you can prove that counts."
Asset-hiding spouses have been assessed court costs, ordered to pay the legal or private investigator bills of the opposing party, and had prenuptial or postnuptial agreements voided, which can cost the guilty party money. Judges tend to frown upon a spouse who hides assets. In a Washington State case, for example, a husband who repeatedly failed to produce current financial statements so angered the judge that he allocated 90 percent of the marital assets to the wife.
Depending on the laws of your state, if you refuse to disclose assets or information requested by the court, you might be held in contempt of court, a misdemeanor which can result in fines or even jail time. If you lie about your assets in court, you might be charged with perjury for testifying falsely under oath. In California, for example, you can serve up to four years in jail for perjury. You might be charged with fraud, a criminal act, if a prosecutor decides to charge you with deceiving the other party by hiding assets. Penalties include restitution and jail time.
Even if a spouse gets away with hiding assets during a divorce, he is still vulnerable if proof surfaces at a later date, especially since most divorce settlement agreements incorporate a clause requiring full disclosure of assets. But even in a simple agreement without such a disclosure clause, you are not protected if hidden assets are later discovered. The innocent spouse can petition to reopen the divorce settlement, which might result in similar penalties for the asset-hiding spouse had the concealment been discovered during the divorce action. The innocent spouse also could file civil charges against her ex-husband and request monetary and even punitive damages.
- Association fo Divorce Financial Planners
- The New York Times: Hidden Assets: How to Get a Fair Deal When Divorce is in the Cards
- State Bar of Wisconsin: Hiding Assets in Divorce Backfires in Recent Court of Appeals Cases
- Shouse Law Group: California Contempt of Court Laws
- TotalCriminal Defense.com: Fraud
Jim Thomas has been a freelance writer since 1978. He wrote a book about professional golfers and has written magazine articles about sports, politics, legal issues, travel and business for national and Northwest publications. He received a Juris Doctor from Duke Law School and a Bachelor of Science in political science from Whitman College.