Separation can give rise to a myriad of emotions, not the least of which are anger and resentment. These feelings sometimes lead people to do things you may not have thought them capable of—like hiding or secretly transferring marital assets. No doubt that kind of behavior is unsettling, but the bigger concern should be whether you can do anything about it.
Who Owns What in the Marriage?
As a general rule, all property couples acquire during marriage is considered joint or marital property, which will be divided between spouses in a divorce. When distributing property, most states, including New Jersey, use an equitable distribution approach, based on what sort of division would be "fair under the circumstances." Others states, including California and Arizona, are community property states, where each spouse is entitled to fifty-percent of the marital estate.
But no matter what method your state uses to divide property in a divorce, there are normally certain types of assets that are exempt. The most common examples are inheritances, gifts to an individual spouse, and property a spouse brings into the marriage (assuming it's kept separate from other assets). Unless you ultimately choose to share any of that property with your spouse—for example, by putting a gift you received into a joint account for either of you to spend—it's usually yours to keep.
Unloading Property in Anticipation of Divorce
There's a concept in divorce law known as "dissipation of assets." In a nutshell, it means that one spouse has intentionally wasted or mishandled marital property, including transferring marital property to a third party, without the other spouse's agreement or consent. If it occurs, it can impact the outcome of a divorce.
State laws vary as to what activities constitute dissipation. Some states also require that their courts examine the timing of the spouse's actions. In Illinois, the dissipation has to occur when the marriage is already broken beyond repair to be considered a problem.
For example, let's say that your marriage is clearly on the rocks and headed to divorce when your spouse suddenly withdraws $20,000 from your joint checking account and gives $10,000 to Uncle Zeke—who's very fond of your spouse, but hasn't spoken to you since the wedding. The rest of the money is allegedly loaned to a best friend.
Assuming this is unusual conduct for your spouse, and you didn't condone it, there's a good chance that under these circumstances, a court will view it as a dissipation of assets. Both the behavior and the timing are suspect and could easily lead to the conclusion that it was an attempt to keep money out of the marital distribution pool—and thus, out of your pocket.
It may be that your spouse did it just to spite you, with no intention of ever seeing the money again. The more likely scenario is that Uncle Zeke returns the money to your spouse as soon as the divorce is over, and the friend pays back the "loan"—to your spouse, not you—around the same time. Either way, it's wrong.
What Recourse Do You Have?
If you suspect your spouse is preparing to hide or transfer assets—or has already done so—you should speak with a divorce attorney, and get into court as quickly as possible.
There are various avenues available for seeking the court's assistance, but if divorce is already a foregone conclusion, more often than not your attorney will simply file the divorce petition (also called a "complaint"). If there's a good reason to believe your spouse is about to hide or transfer assets, your attorney can also ask a judge to freeze certain property, like bank accounts. In fact, in some states like California, the divorce petition and summons contain automatic restraining orders preventing spouses from transferring marital assets without each other's consent.
Once the asset freeze is in place, you and your spouse are prohibited from wasting or dissipating money, property, or accounts. However, the court will entertain reasonable requests to use marital funds for items like normal household expenses, childcare costs, and attorney's fees.
If the court finds that your spouse wasted assets, a judge can award you a greater portion of the remaining property at the end of the divorce, in an amount that will make up the difference.
Having to deal with a vindictive spouse, who is intent on making your life miserable by hiding money is nerve-racking at best. If you find yourself in this situation, you should speak with an experienced divorce lawyer right away.