When you are considering a separation or divorce from your spouse, or in the event a dissolution of marriage proceeding has begun, it is important to consider whether or not actions can (or need to) be taken to prevent dissipation of assets by your spouse, and to consider other actions to protect your interests prior to a final resolution of your case. You should discuss these issues with an experienced family law attorney to determine whether or not you should take special actions to safeguard property and if so, the timing and notice (if any) to be given to your spouse of actions taken. In addition to part one of this series, over these 7 posts, I will discuss several topics you should discuss with your attorney and weigh the risk that your spouse may take action if you do not, against the possibility that action by you may anger your spouse or be viewed in a negative light by the court. Of course, time can be of the essence so don’t wait to have this discussion. While you are mulling over what to do, your spouse may be taking action.
In this second part of this series, I will discuss issues to consider regarding what documents to obtain for your attorney and how you might go about getting them.
BOOKS, RECORDS, and DOCUMENTS
It can be very important for you to have in your possession the family financial records and possibly certain records of a business that you or your spouse operates or in which you or your spouse has an ownership interest.
A. Family Financial Records should include the sort of things listed below:
- Tax returns from all prior years, or least the past 5 years
- Account statements, cancelled checks, deposit slips and transaction advices for all financial accounts (banks, credit unions, savings & loans, brokerage firms, etc.)
- Checkbook ledgers/registers
- Retirement asset statements, such as pension, I.R.A., Keogh, profit sharing and 401(k) statements, plans and summary plan descriptions
- Life insurance policies, latest premium statement and any statement of cash surrender value loan balances
- Pay stubs
- Deeds, Promissory Notes, Deed(s) of Trust, and Mortgages
- Financial statements
- Loan applications
- Credit card bills
- Loan payment books or statements
- Identification cards and forms for health insurance and summaries of insurance coverage limits
B. Records of a business in which you or your spouse has an ownership interest should include, among others, the following:
- Tax returns from all prior years, or least the past 5 years
- Agreements, such as shareholder agreements, stockholder agreements, operating agreements for limited liability companies, and partnership agreements
- Financial statements showing profits and losses and assets and liabilities for all prior years, or at least the past 5 years
- Corporate “minute” books and stock ownership books.
C. At a minimum, you should make copies of the above and discuss with your attorney what period of time the documents should cover.
D. If any of these records or documents are maintained on a personal or business computer, it is critical that you discuss your legal right to access these records before you do so, so as not to violate Federal and state laws governing computer access.
E. You should discuss with your attorney if you should place the originals of the records where your spouse cannot find and remove or destroy them in a safe location not in the house. Again, there are pro’s (safety) and con’s (exacerbation of tensions) to these actions. You may then provide them to your spouse or your spouse’s attorney in a controlled situation where they will not be at risk.
While these actions may exacerbate tensions with your spouse, they may be recommended by your attorney to prevent the destruction, alteration or concealment of these books, records and documents. There may be criminal consequences to destruction or alteration of documents which will be used in the case as evidence. Further, these documents may be important to the completion of court-required financial statements, and for other issues in your case, such as determining your standard of living or the valuation of assets, including business interests.
All of these actions can cause negative responses from your spouse, but may, in the end, have been better than doing nothing at all, but they should not be tried without the careful planning and advice of your attorney. And while these documents may be “discoverable” using more formal court-assisted tools to obtain documents, obtaining them without resort to formal tools of discovery will likely save your attorney time and save you money.
Links:
Part 1
Part 3
Part 4
Part 5
Part 6
Part 7
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