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It's The Law: Misconduct Can Reduce Share Of Divorce Assets

Question: My spouse has done a lot of bad things recently. I think I should get more of our assets than my spouse because I have had to deal with his misconduct. What will the judge say?

Answer: Section 61.075 Florida Statutes mandates that the judge's starting point for distribution of marital assets in divorce is that distribution should be equal. The statute then provides that distribution may be unequal based on all relevant factors. The statute references a number of factors to be considered, including contributions to the marriage by each spouse, economic circumstances of the parties, and most importantly, the intentional dissipation, waste, depletion or destruction of marital assets after filing the petition or within two (2) years of filing the petition. The statute also allows the judge to consider "any other factors necessary to due equity and justice between the parties."

Over the years, Florida's courts have not generally considered misconduct a valid reason to award a greater share of the marital assets to the innocent spouse, unless the misconduct depleted marital assets. Some of those cases involved misconduct which was so heinous as to be shocking, but even under those circumstances the misconduct did not affect distribution of assets.

In the case of Bell v. Bell, the husband molested the parties' 5 year old grandchild, 2 of their children and burned the parties' property to collect insurance. He was serving a life sentence for molestation. The court found that the husband's acts of child molestation did not appear to dissipate financial assets. His arson and similar acts could impact distribution, if there was a clear showing that those actions reduced assets or increased debts from the former wife. However, in the absence of clear evidence, the court opined that unequal distribution was inappropriate.

In Heilman v. Heilman, the wife moved in with another woman, with whom she had fallen in love. Her husband argued at their divorce trial that the family had been emotionally devastated and that he should be awarded a larger portion of marital assets. The trial judge agreed with him but the appellate court reversed because there was no showing that the wife's misconduct reduced marital assets.

Even where one party is a spend thrift and the other more frugal, the courts will routinely deny requests for unequal distribution of the assets remaining at time of divorce. In Horn v. Horn, the trial court awarded the husband only 25% of his wife's 401K, explaining that the wife had managed her money more frugally. The appellate court reversed, as there had been no showing of wrongful dissipation of marital assets. The decision implies that if one wants to complain about a spouse's spending habits, you need to do so promptly and not raise it after years of marriage when it is time to split up the marital pie.

When it can be shown that a spouse wasted marital assets, the courts often award the other spouse a bigger share of what remains. In many cases, a spouse using marital funds for an extramarital affair finds the court awarding the innocent spouse reimbursement. Gambling losses of one spouse may be a factor, but losses in risky stock trading or even living beyond one's means will rarely affect distribution of the remaining assets.

In the case of Rosenfelt v. Rosenfelt, both parties had previously been married to others and had support obligations from those marriages. The wife argued at trial that the husband had improperly wasted marital funds through alimony payments and loans to his family and the judge awarded her the lion's share of assets. The appellate court reversed claiming that once the parties were married their income was marital asset and there could be no other source for payment of court ordered alimony or child support. The court pointed out the obligations were court ordered and the wife was aware of them before she got married. The court also noted that payment of expenses associated with the prior divorce, such as attorney's fees, would also not be waste or misuse of marital assets.

Although the statute appears more flexible, Florida court's have generally required a showing that misconduct has reduced marital assets before awarding the innocent spouse a greater share of what remains. The general theme is that misconduct must be intentional and a use of funds that was neither condoned, nor, in some cases, known to the innocent spouse. The facts and circumstances of each case will certainly affect the outcome. I recommend you meet with an experienced family law attorney to discuss your situation promptly, particularly if your spouse is wasting assets that would otherwise be available for court ordered distribution.

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