One
of the more difficult concepts to get some divorce clients to grasp is that
facts need to be proven before the Court can act upon them. Merely believing,
thinking, or suspecting that certain things are true just won't do. Where is the
evidence? How can we establish the facts? These questions are constantly
present when preparing for trial.
Every divorce judge and lawyer has
heard this lament: "I know he/she is hiding money somewhere." But
saying it just doesn't make it so. Sometimes, forensic accounting can track
down unaccounted-for funds, and sometimes a document shows up that provides the
necessary proof. But, most often the client's conviction that he/she is being
cheated just cannot be established with sufficient certainty to provide any
sort of remedy to the wronged spouse.
Hiding assets can have very serious
consequences if proof is provided. Ohio has a statute that provides: "If a
spouse has substantially and willfully failed to disclose marital
property" the court can award the injured spouse a "greater award of
marital property" up to three times the value of the non-disclosed
property.
But, no proof, no nothing!
While I was on the bench, I heard a
contested divorce trial involving a well-to-do family. Husband and Wife had
been married for well over thirty years and had two grown sons. Husband was an
entrepreneur and had established a very successful business. Wife had never
worked outside of her home. Husband handled all the family finances.
In the course of the case, Husband's
business had been valued and wife was awarded half of that value, along with
half of all the other assets. She also received a substantial amount of spousal
support
However, throughout the trial, Wife,
through her lawyer, tried to convince me that there was a large amount of cash
or some other assets which Husband had not revealed. Wife testified that Husband
was very secretive about money, and she was excluded from any access to the
marital funds. She claimed he had lied, cheated, and deceived her in every way
possible, therefore, there had to be something he was hiding from her and her
lawyer. But, I was presented with no evidence whatsoever from which I could
conclude, on a factual basis, that any assets had been concealed.
The parties owned two residences,
and had lived separately for several years. Wife lived in the substantial home
in an upscale suburb of Columbus, while Husband, having retired, spent his time
in the deluxe beach home in Palm Beach, Florida, where he golfed and fished, and
entertained a series of young ladies. The parties agreed that she would have
the "big house" and he would have the Florida retreat.
When I wrote my decision, I noted the
conflict over the allegation of concealed assets, but found that the evidence
compelled a finding that all the assets were accounted for. The case ended on
that note – almost.
One afternoon, Wife's lawyer called me.
"I have a story to tell you," he said. He proceeded to relate the
following tale:
A couple of years after the divorce was
final, Husband suffered a series of heart attacks and was on his death bed when
he summoned the parties' sons to his side. "Boys," he told them,
"when I am gone, before you sell the beach house, step off twelve paces due
south from the big palm tree by the pool. Dig there." Shortly thereafter,
he passed away. The sons went together to the beach house, found a shovel, and
dug as instructed.
About three feet down in the sandy soil
they found a very heavy metal strong box. Breaking it open, they discovered
that it was full of gold coins and small gold bars. The appraisal came back
well over a half a million dollars. Husband's will left everything to his sons.
The boys gave the gold to their mother, and her suspicions were finally
vindicated.
Sometimes there really is a buried
treasure.
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