Dividing property in a divorce comes down to determining what's yours, what belongs to your spouse, and what belongs to both of you. Your entitlement to certain assets can be a lot more complicated than that, however, because the boundaries can overlap and the lines between each category of property often blur.
Separate Vs. Marital Property
A spouse's separate property is generally not up for grabs in a divorce. If your wife had bank accounts before you married and never bothered to tell you about them, you're generally not entitled to a portion, although some exceptions exist. If a relative died and left her cash and she deposited it into an account solely in her name, you most likely do not have a right to a share of that inheritance. The same applies if someone gave her money and it was a gift made solely to her. In some states, if the money is the result of a personal injury lawsuit, this may also be your spouse's separate property. But, if your wife siphoned money from the household budget and channeled those marital funds into a hidden account in her name, some of that money is yours. Most states require that your wife divulge the existence of all accounts, regardless of whether she thinks they're separate or marital property. The court must know about these assets so the judge can ultimately decide who gets what if you can't reach an agreement on your own.
Isolating Marital Portions
If your wife deposited marital money into accounts that are her sole, separate property, this can tangle up what would otherwise be a clear-cut situation. You would have a right to a share of the marital portion, but you or your spouse would have to establish exactly what that portion is. In some states, the spouse who asserts that an asset is separate property has the burden of proving that is the case. In other states, the spouse who alleges that an asset is joint property has the burden of proof. In either case, you may need to hire a forensic accountant to trace the source of the funds in your wife's hidden account to segregate the initial separate property balance.
Effects on Divorce
If the full balances in the hidden accounts represent marital money, not only are you entitled to a share after you discover the accounts' existence, but the fact that they were hidden might affect the court's determination of property division in your divorce. The repercussions for hiding assets can vary from state to state, but you might be awarded more than a 50 percent share of the money. If your divorce goes to trial, your spouse's attempt at deception might undermine her position in the eyes of the judge. Your spouse might be more willing to negotiate a settlement with you if she knows you will inform the court that she has attempted to hide assets.
Other Penalties for Hiding Assets
Your wife might also be ordered to pay your attorney's fees or other costs associated with uncovering the accounts she tried to hide. It's possible that the court might hold her in contempt for her actions, which can result in criminal penalties such as jail time. However, this usually only happens when a spouse conceals considerable assets, such as if the balances of the hidden accounts comprise a significant percentage of your overall marital wealth.
- Miles Mason Family Law Group: Hidden Income and Hidden Assets in Tennessee Divorces
- Jorgensen & Salberg: During a Divorce, Hiding Assets, Transferring Property, or Cutting Off Access to Joint Accounts May Subject a Spouse to Some Fairly Severe Consequences
- Bedrock Divorce Advisors: The Difference Between Separate and Marital Property
- Pollock, Begg, Komar, Glasser & Vertz: Tracing Nomarital Property
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