Question: My son is over in Iraq. He and his wife have decided to divorce. He is under the impression that he is legally obligated to leave a certain amount of money in the bank account for her while he is overseas during the divorce process.
Is this true? Have you heard of anything like this?
There is no “hands-off,” so to speak, rule that requires spouses to leave each other money – that is a common misconception, and it likely stems from two actual rules in many states: the rule against willful non-support for a spouse (commonly referred to as “criminal non-support” or “abandonment”) and the rule against fraudulent transfers of assets in anticipation of litigation (sometimes referred to as “insider transactions”).
Take the case of Mr. Wiand in Wiand v Wiand, 178 Mich App 137; 443 NW2d 464 (1989), as an example. He and Ms. Wiand acquired a sizable estate over their ten year marriage. The estate included homes, investments and Mr. Wiand’s interests in formulas, trade secrets and closely held businesses. These assets were worth, in the divorce court’s guesstimate, nearly one million dollars alone. But that was truly a guesstimate, because the court did not have the assets before it to value. Anticipating a large loss to his wife if he divorced owning them, Mr. Wiand sold them to his brother in what appeared, on paper, to be an arm’s length transaction. The divorce court found, however, that Mr. Wiand and his brother conspired to deprive Ms. Wiand of her rightful share of the marital estate. Therefore, the court awarded her one-half the value of “the brother’s” assets. The appellate court affirmed the award, holding that a court may divide property held by a third party if one spouse and the third party conspired to deprive the other spouse of it by awarding the value of the property to the innocent spouse.
Your son should not purposely divert assets or leave his spouse penniless. In the end, his divorce court will consider the assets he diverted when dividing their marital property and debts, and, worse, he may commit a crime. If your son is concerned about his spouse’s spending habits, he should speak to an attorney about obtaining an asset restraining order when he files for divorce. He should also take advantage of the discovery period to subpoena third parties, obtain documents and investigate to prove a case of waste or fraud.
Keep in mind that I am a Michigan attorney and cannot give you detailed advice about the laws in Rhode Island. Neither you nor your son should not rely on this answer as establishing an attorney-client relationship, and you and your son should contact an attorney in the area for additional information and legal representation. Thank you for submitting a question to Cordell & Cordell, P.C.
Jennifer M. Paine is an Associate Attorney in the Detroit, Michigan office of Cordell & Cordell P.C. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims. Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.