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Question:ask a divorce lawyer

What is the definition of "financial misconduct"and how do you prove it?

I'm in the divorce process and my wife lets her daughter have free reign of her credit card and does nothing to curtail spending only telling me about it after the fact. Does personal conduct play a factor in the division of property?

Answer:

First let me preface my answer by stating that I am licensed to practice law in Oklahoma and not licensed to practice law in Alabama, so I am unable to give you any specific advice regarding your question because I am not familiar with Alabama statues and rules. However, I can give you a general response to your question, although for specific advice you need to speak to an attorney licensed in Alabama.  Especially in situations where there are questions about compliance with Court orders, having an attorney review the Divorce Decree before you take any action is strongly recommended.

Oklahoma courts generally do not consider the personal conduct of the parties as a factor in the division of property unless the conduct affects the value of marital property.  In Oklahoma you would be required to make a showing that the actions of your soon-to-be ex-wife in someway negatively impacted your marital estate’s value.  This is not necessarily an easy burden to meet.  Although you may believe your wife’s actions rise to the level of misconduct the Court may see it differently. 

The most commonly discussed type of “financial misconduct” in Oklahoma is dissipation of marital assets.  Dissipation is when one party spends or uses marital assets in a wasteful way.   This harms the innocent spouse in a specific way, now with a smaller marital estate the spouse will end up with a small amount of assets when he/she leaves the marriage.  You may be able to show that as a result of the your wife’s actions (i.e. spending by your wife on her daughter and her acquiescence of the daughter’s stealing and using your wife’s credit card without recourse) the marital estate was harmed and its value decreased, thus dissipation of the marital estate occurred. 

Your burden at trial would be to show the Court how and why your wife’s actions caused the marital estate harm.  You would most likely need to show the spending to be beyond a reasonable amount of money to spend on her daughter.  This will need to be supported by a showing of a decrease in value of the marital estate.  If the overall amount spent by and for your wife’s daughter is not substantial this may be difficult to prove.  You would also need to be prepared to show to the Court specifics of the lack of action taken by your wife to correct her daughter’s theft and spending. 

Ultimately, the Court will use that information in determining how to divide the marital estate between you and your wife.  If the Court finds your wife has dissipated marital assets it would most likely award you a larger percentage of the marital estate.

 

Bradley K. Cunningham is a Senior Attorney in the Tulsa, Oklahoma office of Cordell & Cordell P.C. where his primary practice is exclusively in the area of domestic relations. Mr. Cunningham is licensed in the states of Oklahoma and Texas. 

After growing up in Tulsa, Mr. Cunningham moved to Arkansas where he received his undergraduate degree in Accounting from Harding University in Searcy, Arkansas. He then returned to Oklahoma and received his Juris Doctor from the University of Oklahoma.


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