Most seasoned family law attorneys have consulted with divorced parties who learn after the divorce, that a spouse did not disclose assets. These potential clients want to know what, if any remedy, they have in pursuing their share of that asset. The threshold issue is to determine from a cost-benefit analysis if the fight is worth your percentage of the non-disclosed asset. If the account or asset is only worth a few hundred or thousand dollars, then the legal fees and emotional grief related to litigation usually are not worth the fight. On the other hand, if the secreted asset is worth thousands, hundreds of thousands, or millions a challenge to the property division of the divorce is normally worth making. This blog explores what you need to know about litigating to reopen a divorce case and try to obtain your share of secreted assets.
As a threshold matter, the courts normally require parties to provide some basic “discovery” to the opposing party by filing a financial declaration. A financial declaration is a rudimentary disclosure of assets and liabilities. However, not all courts require financial declarations to be exchanged or enforce the failure to exchange.1 The term “discovery” references several Indiana Rules of Trial Procedure that allow your counsel to obtain information from the other side, including all assets and liabilities, during the divorce. If you did not do discovery or complete discovery, you generally invited the error (or the problem you now face) and have waived (or given up) any right to challenge the division. This is because there is a strong legal rule called the Rule of Finality.2 This means nothing more than all litigation needs to come to a stop and be final at some point and trial courts should just not reopen cases for any reason.
That said, if you have done your discovery, and subsequently learn of hidden or secreted assets, you may seek relief under Indiana Rule of Trial Procedure 60(B) and attempt to reopen the case.3 This rule has certain strict time provisions for some of the challenges you can make so you should act as soon as possible upon discovering the fraud to avoid being precluded by the passage of time. Sometimes this is hard for divorced litigants to understand because trial courts retain jurisdiction to modify custody and determine higher education expenses at any time. With property divisions, on the other hand, the trial court loses jurisdiction—except to enforce what was agreed to or order at trial–thirty (30) days after the trial court issues its final order.
Because of the rule of finality, these are difficult cases to prepare for trial and try, but if tens to hundreds of thousands of dollars are on the table, this might be a viable solution for you to receive your presumptive equal division of the marital estate or a true unequal division if the trial court made such. Again this relief is found under Indiana Rule of Trial Procedure 60(B). These cases require skilled counsel to work up and prepare the case for trial because a movant has the burden of proof and must have evidence (documents or witnesses) to substantiate the claims. We hope this blog helps you understand you do have a remedy if a party fails to disclose their assets and it has a material impact on the division of the marital estate. Dixon & Moseley, P.C. handles all types of domestic relations cases throughout the State. This blog post is written for general educational purposes only and is not intended as legal advice, nor is it a solicitation for services. It is an advertisement.