Tuesday, May 14, 2013

Waste and Dissipation Claims: Is There a Statute of Limitations?

In a divorce proceeding, clients often ask how far back the Court will look when assessing whether a party engaged in waste or dissipation of marital assets. Equitable distribution of marital assets is governed by section 61.075, Florida Statutes.

Under section 61.075, the court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors. Section 61.075(1)(i) requires trial courts to consider intentional dissipation that occurs up to two (2) years prior to filing the petition.

Dissipation occurs where one spouse uses marital funds for his or her own benefit and for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown. See Roth v. Roth, 973 So. 2d 580, 585 (Fla. 2d DCA 2008) (citing  Romano v. Romano, 632 So. 2d 207, 210 (Fla. 4th DCA 1994)).

Too often, a divorce attorney will advise clients that you can only prove waste or dissipation that occurred with the past two (2) years. The statute, however, is silent as to intentional waste or dissipation that may have occurred more remotely in time. If your spouse intentionally dissipated marital assets three years prior to the filing date, is there any recourse?

 Courts have held that the legislature did not intend to preclude consideration of waste or dissipation beyond two years. See, e.g., Beers v. Beers, 724 So. 2d 109, 114-15 (Fla. 5th DCA 1998); Amos v. Amos, 99 So. 3d 979 (Fla. 1st DCA 2012).  Intentional dissipation of marital assets occurring more than two years prior to filing a petition for dissolution may, in some instances, be a factor necessary to do equity and justice between the parties.  Clearly, a party should not be able to transfer significant assets outside the marital estate, wait two years, and then file for divorce.  Courts have considered waste and dissipation beyond two years under the catchall provision of section 61.075(1)(j).  Id.  But, the Court has great discretion in deciding whether to consider any evidence of waste or dissipation that occurred more years prior to the filing date.