Hidden Assets - What Can I Do?

My Spouse Has Hidden Assets – What Can I Do?

Separating from a spouse can be daunting and overwhelming, especially when there are children and financial matters to consider. Most people hope to have a respectful and amicable divorce but what do you do if you suspect or know your spouse is trying (or has succeeded) in moving or hiding assets? You are likely to be very worried and be wondering what your options are. Here Brigid O’Malley discusses the role that hidden assets can play on a divorce and what you can do if you find yourself in this situation.

 

How are financial matters dealt with upon divorce?

The court will take into consideration a number of factors when determining what a fair financial settlement should be. Those factors are set out in section 25 of the Matrimonial Causes Act (1973). The first consideration is the welfare of any children of the family and the remaining factors will be considered by the Court in order to determine what is a fair distribution of the marital assets in order to meet the needs of both parties. The starting point is an equal (50/50) division of the assets.

It is important to note that each party has a duty to provide full and frank disclosure of their assets, income and liabilities in financial remedy proceedings. This means each party has a legal obligation to be honest and disclose everything they own. This is an ongoing duty throughout the proceedings.

It may be that your fears are alleviated after considering your spouse’s disclosure and they have indeed disclosed all assets you believe they have. However, it may also become apparent from considering the disclosure filed in the case by your spouse that they have moved assets or not disclosed certain items.  In such circumstances the Court can:

  • Make costs orders for your spouse to pay your legal costs.
  • Make a “Search Order” to discover what assets your spouse has but this is expensive and not a frequently used order of the court.

 

 

What can I do if my spouse has hidden assets – how will the Court determine a fair settlement?

The court can draw something called an Adverse Inference if the evidence filed in the case strongly demonstrates one party has not complied with their duty of full and frank disclosure. Effectively, a court may be able to determine one party has failed to disclose all their assets and the settlement awarded would be reflective of this.

Depending upon the facts of each individual case, the allegations made, and the evidence filed, the Court can do a number of things:

  • Make an Order to set aside the transaction.
  • Make an Order to add the asset back into the asset pot for division.
  • Treat the asset as being back in the asset pot, and belonging to your spouse, and adjusting the settlement accordingly.

In order to grant an order to set aside a transaction the court has to be satisfied that your spouse deliberately took steps to try and defeat your claim and that if the transaction was to be set aside you would be granted financial relief, or a different financial remedy order would be made.

The court can “add back” funds to the asset pot if they are satisfied your spouse has recklessly spent money or disposed of funds. This will effectively mean the monies are put back into the asset pot for division.

Sometimes, even if the court is satisfied the transaction was completed in order to dissipate/reduce the assets, an order to set aside that transaction or an order for the asset to be “added back” to the pot will not be made. This might be where there are enough assets in the case meaning a fair order can be made, without the need to set aside the specific transaction.

 

 

What can I do if I think my spouse may be about to transfer or hide assets?

If this is the case, an application can be made to Court for a Freezing Order which an injunction to prevent the disposition of an asset or assets. This application can be made urgently if there is evidence that a transfer is imminent. Therefore, you may need to act quickly, and we would encourage you to get immediate legal advice.

If your spouse has already taken steps and disposed of assets, then the Court may grant Orders to either set aside those transactions or “add back” the funds to the asset pot for division.

 

All of these actions require careful consideration of the allegations, the evidence and the relief that may be sought. Applications of this nature can be expensive, but it is vital you obtain advice immediately if you are concerned your spouse may have hidden or disposed of assets or be in the process of doing this. It may be that an urgent application is needed and the sooner you act, the better.

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