Some spouses will go to great lengths to avoid a division of property in divorce. They may deliberately remove assets from the state to put them beyond the reach of the court, but this usually doesn't work. In Florida, the court can often distribute an asset’s value, no matter where it is physically located.
Court Jurisdiction Over Property
Two issues determine whether Florida has jurisdiction -- or the legal right -- to address a missing asset in divorce. The first is the character of the property. If the removed asset is marital property, Florida has jurisdiction over distributing its value. Marital property is usually anything other than an inheritance acquired by either spouse during the marriage, no matter which spouse holds title. Therefore, if spouses purchased or acquired an asset while they were married, Florida courts usually reserve the right to pull it back into the marital estate and equitably distribute it, even if one spouse has moved it out of state. The new state does not acquire jurisdiction simply because one spouse has relocated it there.
Court Jurisdiction Over Spouse
Florida courts must also have jurisdiction over spouses to divide their property -- or to even grant a divorce at all. The court acquires jurisdiction over the spouse filing for divorce when she attests in her petition that she’s met Florida’s residency requirements. It usually acquires jurisdiction over the other spouse when he officially receives a copy of the divorce papers. Florida also has a “long arm” statute. This essentially means that even if a spouse relocates out of Florida, taking marital assets with him, both he and the assets are still subject to Florida’s divorce laws if the parties lived in Florida together when one spouse filed for divorce. This rule also applies if the relocating spouse lived in Florida before the other spouse filed for divorce.
Florida courts do not have the right to distribute separate, non-marital property, such as assets acquired before the marriage or through inheritance. When one spouse removes his separate property out of state, the other spouse usually has no remedy. It’s not part of the marital estate to begin with, so he can do whatever he likes with it. Florida law places the burden of proof on the spouse who claims an asset is his sole property. If he can prove to the court that the asset is not marital, it’s exempt from distribution in divorce.
Depending on the nature of the transfer of marital property to another jurisdiction, penalties in Florida for trying to shield it from distribution in divorce can be significant. In this case, the burden of proof is on the innocent spouse. If she can prove that her partner removed the asset from the state of Florida to avoid distributing it in the divorce, Florida judges have the power to award additional marital property to her, giving her more than a 50/50 share. Florida courts can also order a writ of bodily attachment for the spouse who secreted the property. Law enforcement can arrest him and bring him before a family court judge, who would require him to divulge the location of the missing asset. However, absent compelling proof that he deliberately moved the asset to try to remove it from the marital estate, the court would most likely divide the asset just as it would have if it had remained in Florida. There may not be any punishment or sanctions.