What to do about assets that were spent down after a separation?

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What to do about assets that were spent down after a separation?

My husband and I separated over a year ago and are still in the process of filing for the divorce. At the time he moved out and got his own apartment he had $100,000 in his 401k. He has since cashed most of it out and only has about $20,000 left. Will I be entitled to 50% of the original $100,000 or only the $20,000 that is left?

Asked on August 30, 2011 Arizona

Answers:

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

You have what is commonly referred to as a claim that your husband has "dissipated" marital assets.  To dissipate marital assets means to destroy or waste them and spending money foolishly is considered an example of such.  If you can prove that he did in fact dissipate the $80,000 then most courts hold that you will be entitled to use the $100,000 in the calculation of marital assets for distribution and not the $20,000.  Check with an attorney in your state how the courts view this issue in case law as that will be the final say so on the matter based upon your set of facts here.  Good luck to you. 


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