Going through a divorce can be a trying and emotional time. You are negotiating and entering into a final agreement that will hopefully resolve any and all outstanding issues between you and your soon-to-be ex-spouse. Despite the high emotions, it is important that during the divorce process itself, you protect what is rightfully yours to ensure it is still there when the divorce is finalized. After all, your final agreement cannot award you an asset that no longer exists.
The Court has an obligation to protect marital assets pending litigation. See Crowe v. DeGioia, 90 N.J., 126, 139 (1982) (court may intervene with temporary relief “to protect the res from ‘destruction, loss or impairment, so as to prevent the decree of the court, upon the merits, from becoming futile or inefficacious in operation…” (Schreiber, J., dissenting) (citing Guangione v. Guangione, 97 N.J. Eq. 303, 305 (E. & A. 1925)).
It is not uncommon for requests to be made for the Court to prohibit one party from selling, transferring, or dissipating any marital assets which may be subject to equitable distribution. This could be for a variety of reasons including but not limited to a past history of one party taking out loans without the other’s knowledge. Should the other party have any specific reason to deplete marital assets prior to the divorce being finalized, you are going to want to make sure those assets are protected so your eventual share of them is not depleted. Once depleted, the depleting party may not be able to replace whatever asset he/she drains.
If you have reason to believe your spouse may have the motivation or the ability to deplete marital assets during the pendency of your litigation, it is important that you obtain a court order prohibiting them from selling, transferring, dissipating, encumbering, or otherwise adversely affecting any marital assets which may be subject to equitable distribution.
This request should also include a prohibition against either party seeking an advance of loan against their 401k or other retirement plan, if applicable. You can always mutually agree to do otherwise, but in the interim, that court order will ensure your assets are available to you when your divorce is finalized.
If either party does improperly dissipate any martial asset subject to the Order, the Court can deduct the value of same from the offending parties’ share of equitable distribution once the divorce is finalized. To speak to a family law divorce lawyer at Lyons & Associates, please contact us online or call our office at 908-575-9777 to schedule an appointment.
Written By: William P. Lemega, Esq.