How do you prove that you did not willfully fail to disclose an asset in your marital Settlement agreement that was uncontested?
There is only a Proof or service of Declaration Final Disclosures of Assets, but there is no copy of Declaration of Assets Preliminary/Final Disclosure neither attached nor filed with the courts.
No one has a copy of Disclosed Assets Disclosure Statements from either party.
I remembers disclosing that I had units of VAR’s in my old company and that they were not worth much at the time of the divorce and they were in a 10 year vesture and she told me to keep it because she didn’t want to wait for it. She only wanted what she could cash out.
But are Marital Settlement Agreement reads:
Line 14. Full Disclosure of Assets and Gifts: Each party has warranted to the other that he or she has no ownership interest in or claim to any property of any kind, other than the property described in this Agreement, and that he or she has not made, without the knowledge of the other, any gift or transfer of community property within the past five (5) years for less than full and adequate consideration.
Line 15. After-Discovered and Concealed Assets: If additional assets of community property nature are subsequently discovered, the existence of which were in good faith unknown or forgotten by both parties, such assets shall be divided equally between the parties. All other after-discovered assets shall
Be divided as determined by the court of competent jurisdiction. The court specifically retains jurisdiction over all concealed or after discovered assets.
I didn’t conceal nor was it forgotten. She always treated that she would take me back for her entitlement to those assets. I’m not fighting her rights to the assets. She is entitled to 50% if those if that is the law that she can come back and do that, but I contest to the fact that she is asking for a 100% of those assets. And I only think she is not entitled to after separation to nothing.
The disclosures are not filed with the court. If she has a copy of the disclosures then it should show it. If she waived the final disclosures then you can argue that she assumed the risk.
This is just my opinion and not a comprehensive answer. You assume the risk because this answer may not apply to your situation depending on the facts.
As the party alleging the failure to disclose the asset, the burden of proof should be on her to show it. In addition, she has to show a willful intent to conceal it. You would want to think of instances where you discussed this particular asset, that she had full knowledge of it. i.e., statements re this asset coming to your former home, inclusion of information of the asset on tax returns she signed....in short any documentation or witness you can find that has any relation to this asset that she would have had knowledge of or involvement with. The request for 100% of those assets is intended to be punitive for your alleged active concealment of the asset involved. That aspect of the law is intended to discourage people from hiding assets. While I haven't checked, I believe that the standard of proof on this type of issue is one of "clear and convincing" proof of your intent to conceal it, not simply proof of that by a preponderance of the evidence. These are technical aspects of the evidentiary laws and not something a layperson would likely be able to handle. If the asset is of significant value or importance, you should hire an experienced family law attorney.
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