You knew divorce would mean splitting your assets. But now you've come to the point where you actually have to start identifying what those assets are, and committing them (as well as your liabilities) to paper in the discovery phase of your divorce. In Minnesota, marital assets are divided in divorce in a way that is "fair and equitable." This does not always mean exactly equally, but the division is usually close to equal.
Divorce isn't easy, and the time leading up to the divorce was likely difficult as well. Perhaps your spouse cheated or hurt you in other ways. Maybe you worked constantly to support the family while your spouse only squandered your earnings. You might feel that your spouse doesn't deserve half of everything—that it would be unfair. Do you really have to disclose everything in your divorce discovery?
In Minnesota, each party has an affirmative duty to identify all of their assets and liabilities in divorce discovery. An affirmative duty means you are obligated to disclose an asset regardless of whether you are specifically asked about it. Even if you've kept a secret bank account since the day after you've gotten married, and your spouse has never contributed a penny to it or even known about it, it is still marital property and must be disclosed. "They didn't ask me" is not an excuse for failing to disclose! Of course, if you are directly asked about an asset, you must answer honestly.
Some people operate on the principle that "it's easier to get forgiveness than permission;" that is, if they fail to disclose an asset and it comes to light later, they're more likely to get to keep it than if they're up front, disclosing it and asking to keep it in divorce. Those people are usually in for an unpleasant surprise when the asset becomes known.
If you conceal or "forget to mention" an asset and it's later discovered, it's unlikely that the court will just let it go. Here are some real-life examples of consequences for failing to disclose that we've witnessed.
One party to a divorce had a motorcycle that was titled in his brother's name. It was kept in a shed at the marital home where his wife was staying. He did not list the motorcycle among the marital assets in discovery because it was allegedly his brother's. When he went back to get it, it was gone. Because he had not listed the motorcycle as a marital asset, the court could not take any action against his wife for disposing of it.
In another case, a party to a divorce worked for 20 years at Company A. He then switched jobs, moving to Company B. Although he had a pension from Company A, he did not list it among the marital assets. He said it was because his wife said he could have it. Two weeks after the divorce, his ex-wife made a fraud allegation to reopen the divorce settlement. The man had to give up half of his pension to his ex-wife.
Rule 60.02 of the Minnesota Rules of Civil Procedure clearly state that a divorce can be reopened for fraud or "any other reason justifying relief from the operation of the judgment." If this happens, it not only means more legal fees, but a judge who is unhappy with a deceptive party and not inclined to make a decision that rewards that deception. The bottom line: if you are aware of a marital asset or liability, disclose it in discovery.
It may seem unfair that you have to disclose everything to your spouse, especially if they've been deceptive to you through the course of your marriage. Your best course of action is to retain an experienced Minnesota divorce attorney who will work diligently and wisely to make sure you get the property division you deserve. To learn more about discovery in Minnesota divorces, we invite you to contact Mundahl Law to schedule a consultation. We look forward to answering your questions.