When a divorce action is started, provisions are put in place to prevent spending down assets after divorce is filed.
When a couple is going through a divorce proceeding, any property they accumulated during the marriage will be divided according to the laws of the state where the divorce action was brought. In many states, the law states that assets will be divided equitably.
Equitably doesn't necessarily that all marital assets will be divided equally between the parties. Either the parties will agree among themselves about how the assets will be divided, or the case will go to trial. At trial, the judge involved needs to decide what is fair in light of the materials in the court file and what evidence is brought forward at the hearing. Either party spending down assets after divorce is filed means that the Court is unable to divide the assets equitably.
Spending Down Assets After Divorce is Filed: Prohibited by Court Order
Going through a divorce is a very emotional experience and people don't always behave well toward their spouse while going through the process. In order to divide the marital property in an equitable manner, it must be available to the parties.
It may be tempting to dispose of marital assets if you are angry and hurt so that they can't pass into the hands of your former spouse. To prevent this from happening, when a person is served with divorce papers, they are also given a document advising them that they are prohibited from selling off marital assets or spending more than they would have ordinarily paid to support themselves.
Petition for Divorce and Summons
In addition to being served with a Petition for Divorce, a Summons is served at the same time. The Summons is a form of restraining order that tells the Respondent (the person receiving the divorce papers) that they are prohibited from selling any marital assets. The Summons also advises the Respondent that they are barred from canceling any insurance policies or changing the beneficiary on existing policies until the divorce hearing has taken place.
Serving the Petition for Divorce and Summons
There are two ways the Petition for Divorce and the Summons can be served:
- A process server delivers the documents to the Respondent personally.
- The Petition and the Summons are mailed to the Respondent, along with an Admission of Service form.
Filing the Petition for Divorce and Summons
After the Petition for Divorce and the Summons have been served, they need to be filed with the Court Administrator at the Courthouse located in the county where the Petitioner lives.
Questions About Spending Down Assets After Divorce is Filed
Whether you are the Petitioner or the Respondent, if you have questions about your rights regarding marital assets, do consult a family law attorney. If you are the Respondent and have been served with a Petition for Divorce and a Summons, read the documents carefully to find out whether you are being given a certain amount of time to respond. Failing to file an Answer within a specific time limit may mean that you will be noted in default and the divorce hearing will be put on the trial list without your being given the opportunity to ask that your marital property be divided in a way that you think would be more fair than what is listed in the Petition for Divorce.
In a situation where you suspect that your spouse has disposed of marital assets in violation of the Summons, seek legal advice about bringing a contempt of court motion against him or her.