Can My Spouse Secretly Get Rid of Our Things During Our Divorce?

Posted on Tuesday, September 26th, 2017 by Tim Simonson and is filed under Divorce, Property.

Unless your spouse is selling things off in order to pay for food, clothing, shelter; or, routinely sells things that you own in order make a living, the answer is ‘no’; your spouse cannot get rid of your belongings or assets during, or leading up to, your divorce. 

Spouses Have a ‘Fiduciary Duty’

This is because, according to law, during the pendency of, or in contemplation of, a divorce, or separation proceeding, each spouse owes a “fiduciary duty” to the other  A “fiduciary” is “[a] person who is required to act for the benefit of another person on all matters within the scope of their relationship.” Black’s Law Dictionary

If, a party in a pending divorce transfers, encumbers, conceals or disposes of a marital asset (except in the usual course of business or for the necessities of life) the court shall compensate the other party by placing both parties in the same position they would have been had the transfer, encumbrance, concealment or disposal not occurred.

‘Giving Back’

The court may impute, or “add back” the value of the transferred, encumbered, concealed, or disposed asset to the party who violated the provision. It is not required that a victimized spouse prove the value of the transferred, concealed, disposed asset in order to receive compensation for the transfer. Haefele v. Haefele, 621 N.W.2d 758, 765 (Minn. App. 2001) (decisions regarding valuation and division are made based on evidence submitted by both parties, but neither party has a burden of proof).  However, it doesn’t hurt to be able to show the court how much was lost in your spouse’s hasty disposal of your stuff. 

The district court’s duty is to ensure that it “shall compensate the [wronged] party by placing both parties in the same position that they would have been in had the transfer . . . not occurred.”  A party seeking to be put back in the position they would have been had the transfer not occurred, should be prepared to bring credible evidence on this point, such as third-party data supporting the value of the asset transferred, concealed, or disposed of.  A spouse who is seeking to be restored to the position she would have but for the transfer, encumbrance, concealment or disposal, has the burden of showing what position they would have been in. Tasker v. Tasker, 395 N.W.2d 100 (Minn. App. 1986) (remanding the case back to the lower court to reconsider evidence as to value of property transferred, concealed, encumbered or disposed).

So a word of caution.  Just because something can be done, doesn’t mean it should be.  While it may be tempting during or building up to a divorce proceeding, to transfer, conceal, encumber or dispose of assets you otherwise share with your spouse, it is ill-advised and will land land you in some trouble with the court.  Unless your decision was motivated by a need to pay for the necessities of life or it is part of the usual course of business during your marriage, will usually result in the court adding back the value of the missing assets and crediting its value to you.

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