Do you have a possible divorce in your near future? Are you thinking of hiding or dissipating assets to keep them to yourself and prevent your spouse from getting his or her marital share? A recent case out of Tallahasse may cause you to rethink your actions.
In the recent case of Amos v. Amos, (1D11-2714, October 3, 2012), while a couple was married, the wife and her brother started a business together – the brother being the corporate president and the wife being the corporate vice president. The wife retained sole ownership of the corporation’s shares, and the husband had no interest in this business that was started during the marriage. After ten years of operation of the business, but three years prior to filing the for divorce (and without knowledge of the husband), the wife transferred all of her shares, without consideration, to her brother. The trial court considered the wife’s transferring shares to her brother as an intentional dissipation of marital assets, a ruling which the wife appealed.
On appeal, the Court referenced Florida Statute section 61.075(1), which lists nine factors that a trial court MUST consider when determining equitable distribution of assets. One of them was 61.075(1)(i), which provides that the court must consider “the intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within 2 years prior to the filing of the petition.” The wife argued, and one might agree based on the language of the statute, that because this section applied to actions occurred within two years prior to the filing of the petition, the transfer to her brother three years prior to filing for divorce should not be affected as it was outside the scope of the statute.
However, the Court addressed the catch-all section of this statute, which provides that a trial court MAY consider “[a]ny other factors necessary to do equity and justice between the factors.” This vague section is apparently in place to cover situations like this. The Court made reference to a similar ruling in the Fifth District, noting that the statute is silent as to dissipation that occurred more remotely in time than the two years provided in section 61.075(1)(i). The Court indicated that these two statutory sections should be read together and concluded that the intentional dissipation of assets more than two years before the filing of the petition falls within that category of the catch-all section. The Court noted the clear distinction between what the Court MUST consider as the enunciated factors and what they MAY consider, according to the catch-all.
As a result, the Court concluded that the trial court did not abuse its discretion by ruling that it could consider the wife’s actions three years prior to the filing of the dissolution of marriage as intentional dissipation of assets, and therefore, the husband would be entitled to his share of same. So even though the wife transferred her share (of which the husband was never a part) three years prior to filing for divorce, he was still entitled to his marital share as if she never made that transfer in the first place.
On its face, one might have guessed that the wife in this case was safe - transferring the shares three years prior to filing. But as I experience in family law practice at The Women's Law Group, like it or not, the Court will examine all aspects of each particular case and apply statutes so as to try to achieve justice and equity for the parties.