Remedies for omitted or hidden assets in divorce

hiddendivorcecashAs a divorce lawyer in downtown Portland Oregon, I frequently get asked about hidden assets in divorce. Sometimes a client is concerned the opposing party may be concealing assets. Sometimes individuals are curious about their obligations to disclose assets in divorce. There are many discovery tools available to lawyers to help discover assets a party may own. For example, ORS 107.089 mandates basic discovery between parties in divorce if a copy of the relevant statute is served on the other side. (See our blog post regarding statutory discovery here) There are also serious ethical consequences for lawyers that assist clients in concealing assets during divorce. The purpose of this post is to discuss what Oregon divorce courts can do after divorce if an asset was left out of the distribution.

Assets can be “omitted” two ways, intentionally or accidentally. ORS 107.452 specifies what the divorce court can do if a party discovers an omitted asset post divorce. If a party alleges that significant assets belonging to either party (1) existed at the time of the entry of the judgment; and (2) were not discovered until after the entry of the judgment; the divorce court must reopen the case.

If the assets were accidentally or inadvertently omitted from the distribution, the court shall make such distribution of the omitted assets as is just and proper in all the circumstances. Basically, if the omission was an accident, the court will divide the asset using the same legal standard as if the asset were discovered prior to the divorce.

The court can hand out harsher remedies in the event an asset was intentionally concealed. If the court finds evidence of intentional concealment, it can order:

1. The division of the appreciated value of the omitted assets;

2. The forfeiture of the omitted assets to the injured party;

3. A compensatory judgment in favor of the injured party;

4. A judgment in favor of the injured party as punitive damages; or

5. Any other distribution as may be just and proper in all the circumstances.

The court can order attorney fees on a motion to reopen a divorce case. A fee award is mandatory if the court finds a party intentionally concealed assets. We previously blogged about how the court decides if fees are appropriate, and if so, how much. Many of the factors the court considers in awarding fees factor in to concealed asset cases.

Time limitations apply. If you think significant assets were omitted from your divorce, you should consult with an experience family law lawyer immediately.

About Sean Stephens

By Sean Stephens Google + Sean Stephens is divorce and family law lawyer, and a founding member of Stephens & Margolin LLP He was born in Eugene, Oregon and is a fourth generation Oregonian. Sean Stephens attended the University of Oregon, and graduated in with a Bachelor of Science in Psychology, with a minor in English Literature. His psychology studies emphasized early childhood development. You can find more about Sean Stephens at Stephens & Margolin LLP Follow him
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12 Responses to Remedies for omitted or hidden assets in divorce

  1. Penny Moon says:

    I owned a Business with my ex and when divorce was signed assets from that business were not addressed . Titles to equipment were held in hiding by a business associate and my ex . I want what I earned to and I am entitled to . PLEASE HELP…

  2. annie says:

    thank you for this very useful post

  3. Are the consequences for deliberately hiding assets during a spousal support modification the same as during divorce? For example, payor moves for modification, seeks discovery from payee, payee hides significant assets, payor finds out about said assets. Thanks!

    • admin says:

      The consequences for deliberately hiding assets during a divorce are covered under statutory law. Specifically ORS 107.452, which is copied below. The issue you are describing is more of a discovery issue. First, you should consult your attorney. Second, if discovery has been properly requested and not produced a motion to compel can be filed. The issue before the court would be whether or not the asset information relates to the reasons for the initial provision of support and/or the current change in circumstances.

      ORS 107.452 Reopening case if assets discovered after entry of judgment. (1) A court that entered a judgment of marital annulment, dissolution or separation shall reopen the case upon the motion of either party if the moving party alleges that significant assets belonging to either or both of the parties:

      (a) Existed at the time of the entry of the judgment; and

      (b) Were not discovered until after the entry of the judgment.

      (2) If the court finds that the assets were inadvertently omitted from the distribution of the marital estate, the court shall make such distribution of the omitted assets as is just and proper in all the circumstances.

      (3) If the court finds that the assets were intentionally concealed and thereby not included in the distribution of the marital estate, the court may order:

      (a) The division of the appreciated value of the omitted assets;

      (b) The forfeiture of the omitted assets to the injured party;

      (c) A compensatory judgment in favor of the injured party;

      (d) A judgment in favor of the injured party as punitive damages; or

      (e) Any other distribution as may be just and proper in all the circumstances.

      (4) The court may award attorney fees on any motion filed pursuant to this section. The court shall award attorney fees to the moving party if the court finds that assets were intentionally concealed and thereby not included in the distribution of the marital estate.

      (5)(a) A motion alleging inadvertent omission of assets must be filed within two years after the date of discovery of the omission but no later than three years after the entry of the judgment.

      (b) A motion alleging intentional concealment of assets must be filed within two years after the date of discovery of the omission but no later than 10 years after the entry of the judgment.

      (6) A motion under this section may be filed with and decided by the trial court during the time an appeal from a judgment is pending before an appellate court. The moving party shall serve a copy of the motion on the appellate court. The moving party shall file a copy of the trial court’s order in the appellate court within seven days after the date of the trial court order. Any necessary modification of the appeal required by the trial court order shall be pursuant to rule of the appellate court. [1995 c.800 §6]

      Please note that this response should not be considered legal advice or relied upon as such.

  4. Sometimes it is necessary to hire a private investigator to discover assets that have been hidden using a corporate veil.

  5. Anonymous says:

    My mother signed a divorce with my father around 1998. She was living in Oregon then and still does. Their divorce was signed in Oregon. They had an overseas property , which used to belong to both of them. My father told me that during the divorce the property was registered in someone else’s name. So, the house wasn’t listed in the divorce settlement.

    Earlier this year, my father was in court about the repossession of this same house and for lost rental income. I asked him if he would have a problem proving his right to own this house, since he transferred it to someone else during the divorce. He told me in an email that he never followed through with that action. The court documents also have him stating that he owned the house since about 7 years before the divorce with my mother and until the present. He also stated that no one else owned the property during this time period.

    It just came to attention this year that my father purposely hide this house during the divorce. So, I am wondering, does my mother have grounds to reopen this divorce and sue for possession of the house and for a lost rental income?

  6. Robert D. says:

    During mediation (9-13-10) we agreed that each other would get their respective life insurance and stated in the mediation agreement “life Insurance”. In the final decree it stated “life insurance including cash value” (1-19-11). I remembered that the cash value was not divided (whole life). I researched the policies and showed the attorney it was a separate account and treated like cash, even found case law to show cash value can be divided. I was told to forget it family law looks at it differently. I insisted the court decide and it was thrown out there as well. I feel due to presentation by the attorney since he told me it would not work and I had to sign the decree at the hearing. I do not understand how this matter can be ignored and she ends up with a significant amount more by not listing the asset on the discovery. I was told if assets were not listed in discovery that it is against the law. I am in Texas. Can anything be done concerning the additional asset?

    • admin says:

      Robert: Your case sounds more like a mistake regarding what was agreed to vs. a hidden asset. I would have to know more about the facts of your case, but given that there was a mediated agreement, (admittedly vague), and a judicial ruling dealing with the life insurance issue, a motion to reopen the divorce case based on the cash value being a hidden asset would not be taken well by the court.

  7. Chuck Wilcox says:

    Hi, I am wanting to know if i can file an application to reopen a divorce case without a lawyer? I have discovered an undisclosed asset either omitted intentionally or not (a check in the amount of $20k) made payable to both of us from an insurance co. My wife at the time took and cashed or deposited it in an account. After receiving a copy of this check, I noticed she also forged my signature on the back. I am wanting to file with the court the correct paperwork to try to get some of this money. I have looked up the deadline dates in Oregon and found that I have 2 years to reopen from the divorce date. The divorce date was April 15th 2009. What can I do? If I need representation is this costly?

    • admin says:

      ORS 107.452 addresses this issue. The text of the statute is as follows. This is a technical legal process and you should consult with a lawyer at the very least.

      107.452 Reopening case if assets discovered after entry of judgment. (1) A court that entered a judgment of marital annulment, dissolution or separation shall reopen the case upon the motion of either party if the moving party alleges that significant assets belonging to either or both of the parties:
      (a) Existed at the time of the entry of the judgment; and
      (b) Were not discovered until after the entry of the judgment.
      (2) If the court finds that the assets were inadvertently omitted from the distribution of the marital estate, the court shall make such distribution of the omitted assets as is just and proper in all the circumstances.
      (3) If the court finds that the assets were intentionally concealed and thereby not included in the distribution of the marital estate, the court may order:
      (a) The division of the appreciated value of the omitted assets;
      (b) The forfeiture of the omitted assets to the injured party;
      (c) A compensatory judgment in favor of the injured party;
      (d) A judgment in favor of the injured party as punitive damages; or
      (e) Any other distribution as may be just and proper in all the circumstances.
      (4) The court may award attorney fees on any motion filed pursuant to this section. The court shall award attorney fees to the moving party if the court finds that assets were intentionally concealed and thereby not included in the distribution of the marital estate.
      (5)(a) A motion alleging inadvertent omission of assets must be filed within two years after the date of discovery of the omission but no later than three years after the entry of the judgment.
      (b) A motion alleging intentional concealment of assets must be filed within two years after the date of discovery of the omission but no later than 10 years after the entry of the judgment.
      (6) A motion under this section may be filed with and decided by the trial court during the time an appeal from a judgment is pending before an appellate court. The moving party shall serve a copy of the motion on the appellate court. The moving party shall file a copy of the trial court’s order in the appellate court within seven days after the date of the trial court order. Any necessary modification of the appeal required by the trial court order shall be pursuant to rule of the appellate court. [1995 c.800 §6]

  8. I’m glad that the court is given the authority to hand out harsher remedies in the event an asset was intentionally concealed – the nonconcealing spouse deserves justice in those cases.

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