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Thread (Discussion): Family Law - Wasted Assets in Property Settlement

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Message 122855


Posted by tryingtosurvive on Dec 10, 2003 05:30 AM | Also by tryingtosurvive
Gender: Male, Age Bracket: 30 - 39, State: N/A, Country: Australia
Here is what is hppening to a friend of mine. Let me know what you think the Law would do.

She is married to a guy for 20 years. She makes house and looks after the kids he goes off to work. Now in this case the contibution to the asset pool is 50 / 50.

Three years before the divorce the Guy blows % 30 percent of the asset pool whithout telling his wife. To me this sets up an asymetry in the contribution to the asset pool.

It can be demonstrated that the money was not lost as some investment made in good faith on behalf of the family. ie not just bad luck where both parties should expect to take equal share of the responsibility of the loss. (We do not know but we suspect it was gambled away. )

My friend was initially legally represented so the other party bombarded them with meanlingless affidavits and ran up a huge fee - my friend is now broke and forced to represent herself.

The guy has also made the court very hostile by being a bloody minded self represented litigant. He wont pay child support and wants to cut his ex off with nothing. I realise this should not make a difference but the Family Court has a lot of lattitude.

The nub of the question is - Does a covert liqufieing of assets by one party constitute an unequal contibution (ie negative percentage ) to the final contribution to property share AT THE TIME OF SEPARATION ?

I fully realise that the next step is to demonstrate the unequal earning capacity in the future and the courst will adress that as a separate issue.

Penny for your thoughts.

Kind Regards

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Message 122883 (In Reply to Message 122855)


Posted by Silverthorne on Dec 10, 2003 10:33 PM | Also by Silverthorne
Gender: Male, Age Bracket: N/A, State: Arizona, Country: United States
Couple questions:

1) You said he doesnt want to pay child support. How old are the kids? He may not have a choice in the matter.

2) "Cut off his ex with nothing". Is she seeking alimony? Did she work at all during the marriage?

3) Is there any evidence as to what happend to the "lost" 30% of assets? Was it cash? You said she has some liability for it so was it money advanced on credit cards or a second mortgage? How does it entangle her?

Thanks,

Silverthorne

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Message 122887 (In Reply to Message 122855)
My reserved opinion


Posted by marta on Dec 11, 2003 12:14 AM | Also by marta
Gender: Female, Age Bracket: N/A, State: N/A, Country: United States
The manner in which assets are divided at the time of divorce depends very heavily on the state in which the divorce is occurring, so without that information, a definitive answer isn't possible.

I will say though, from what I have seen so far, that it is HIGHLY UNLIKELY that the court will take into account the fact that the husband blew 30% of the assets three years before the divorce. Maybe (and I really mean maybe) if he did it 1 month before the divorce, and did so vindictively, but even then I'm not completely sure what the outcome would be.

As for her making house and looking after the kids, some courts in some states might give a hoot, but others will simply divide the assets AT THE TIME OF FILING 50/50. The common law on whether being a housewife and raising children can count as a contribution to the assets accumulated during a marriage is very inconclusive. It depends on the state, the court, the judge, the time of day, what the judge had for breakfast, etc. etc.

Alimony is typically granted to maintain the wife's (typically) standard of living when she is unable to do so herself because she sacrificed her ability to make money to raise children and/run the home.

As for child support, it is not necessarily the case that he will be forced to pay much. It all depends on whether she CAN work, not whether she has in the past. It will also typically depend on his earning potential, e.g. the court will not order that he pay $800 in child support a month if he only makes $1200.

Your friend should go to the nearest law school and try to get someone at their clinic to represent her. Alternatively, she could ask one of the Family Law professors if they know anyone who does pro bono work. She SHOULD NOT be representing herself. She'll get screwed even if her dumb-dumb ex is doing the same.

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Message 122919 (In Reply to Message 122887)
Thank you very much


Posted by tryingtosurvive on Dec 11, 2003 06:57 AM | Also by tryingtosurvive
Gender: Male, Age Bracket: N/A, State: N/A, Country: Australia
Thank you both for your replies :

Firstly all this is happening in Australia.

Silver

"1) You said he doesnt want to pay child support. How old are the kids? He may not have a choice in the matter."

It normally works on a fixed portion of the non custodial parent's wages. He has no choice but only pays when he feels like it. The Child Support Agency is empowered to garnishment pay cheques once it feels the party isn't paying promptly enough. This is now happening.

"2) "Cut off his ex with nothing". Is she seeking alimony? Did she work at all during the marriage?"

Alimony I belive is the same as Spousal Maintenance. My friend feels this is not the way to go since even getting Child Support has been nigh on impossible thus far. She would prefer to go for an increased share of the Property Settlement.

"3) Is there any evidence as to what happend to the "lost" 30% of assets? Was it cash? You said she has some liability for it so was it money advanced on credit cards or a second mortgage? How does it entangle her?"

The only assets are superannuation which in Australia a portion is compulsorily kept for retirement. The voluntary account was spent over a period of about 9 months. This amounted to $ 80 k. We found this out when the Court ordered discovery of the accounts and we saw that one of them was stripped in lots of about $ 10 k. He told her he has drawn $ 20 k to cover house keeping while he was out of work. We believe the rest of it was probably blown at the Casino. What I meant about "liability" was that as a spouse would she share in fortune good or bad? For instance if he won a million bucks (who knows maybe he did) she would get a share of that too in a perfect world.

Marta says she probably will have to cop it sweet.

In Australia the contribution of a home maker is normally taken as 50 / 50 unless circumstances are way out of the ordinary.

"Your friend should go to the nearest law school and try to get someone at their clinic to represent her. Alternatively, she could ask one of the Family Law professors if they know anyone who does pro bono work. She SHOULD NOT be representing herself."

Marta your dead right !! When I met her she was really messed up about this whole thing. The Guy was a basher and is a tyrannical little big man type. I told her to get a Lawyer to settle the matter in court.

He kept threatening to "drag her through court" so I said fine "bring it on."

She hired a Lawyer only to be deluged with a heap of mumbo jumbo mixed with lies from the Ex who was representing himself along with adjornments and non aprearances. Reams of meaningless paperwork and ceacless phone calls quibbling about valuations of fish tanks etc. We warned the Lawyer that this would be the tactic used and she laughed it off as no problem. But it was a problem $ 6000 bucks later and very little has been achieved.

Only one thing has been achived and it is of a spiritual nature. My friend is no longer scared of the bastard and where before she was white with terror in court she now is calm and businesslike. The ex has been fully lambasted by the Magistrates and the Courts have assigned us our own magistrate to head off the bamboozlement to a large degree.

We have a pro bono lined up to do a reality check on our affidavit and to make sure it is as proffessional as possible. But my friend will be "standing on her feet".

Given the plight of my friend (the respondent - like the other party started all this) .. the tottal frustration of the Magistrate at some cocky little wanker trying to beat the system. The quiet dignity and articulate presentation of my friend. The sympathy of the court may actaully weigh in our favour.

I am so proud of her :-)

Thank you for your kind advice and interest.

BTW. If you are into movies there is a very good one about a guy with this character flaw called " A Family of Spies " it is very moving and very well acted. It is based on a true story of a guy that gets pinged for espionage.

TTS

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Message 122968 (In Reply to Message 122919)


Posted by Silverthorne on Dec 12, 2003 12:10 AM | Also by Silverthorne
Gender: Male, Age Bracket: N/A, State: Arizona, Country: United States
Here in the US we have "LEGAL AID" (free lawyers for the poor) to help out people. Is there anything like that in AUS were she could get some affordable legal advice?

Silverthorne

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Message 122973 (In Reply to Message 122968)


Posted by tryingtosurvive on Dec 12, 2003 02:40 AM | Also by tryingtosurvive
Gender: Male, Age Bracket: N/A, State: N/A, Country: Australia
We do have Legal Aid but not in Family Court Matters involving property. They wont even consult in the office. Legal Aid funding has been heavily cut and even serious criminal matters dont get adequate representation. A high profile rape case in Sydney which has had patchy but sensational media coverage was interesting in that the defendant sacked his state appointed lawyer and wanted to defend himself. A law was hastily passed preventing the defendent from cross examining the complainant and the controversy was hosed off.

Initially it was presented by the media as a gang of religiously motivated Lebanesse Muslim youths who pick young Christian girls at random and using Cell Phones hunted them down and pack raped them. It ran nicely with the backdrop of the invasion of Iraq. From the snipets that have leaked out it seems that there is virtually no truth in that.

It is an interesting case for a number of reasons. I should dig it up an see if it is of interest in the General Forum.

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Thread


122855, tryingtosurvive, Dec 10, 2003 05:30 AM
      122883, Silverthorne, Dec 10, 2003 10:33 PM
      122887, marta, Dec 11, 2003 12:14 AM [My reserved opinion]
            122919, tryingtosurvive, Dec 11, 2003 06:57 AM [Thank you very much]
                  122968, Silverthorne, Dec 12, 2003 12:10 AM
                        122973, tryingtosurvive, Dec 12, 2003 02:40 AM
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