Dissipation of Marital Property & Burden of Persuasion

March 28, 2011

This posting is a companion to my March 20, 2011 discussion of Omayaka v. Omayaka. Maryland Divorce Lawyers will recognize that this is a rare opinion on family law by Maryland's Court of Appeals. As Maryland's highest court noted "dissipation of marital assets, as with many issues in the field of family law, has not been considered much of late by this Court. The majority of modern reported cases developing the doctrine of intentional dissipation of marital assets have been reported by the Court of Special Appeals."

The opinion upheld the trial court's decision declining to find dissipation by wife. She had made "over the counter" withdrawal of approximately $80,000 during an eight month period. Wife testified that these withdrawals were for "household goods, mortgages, clothes, to pay off credit card debt, and to send money to her minor children, somewhere." Husband pointed to her lack of receipts. He argued that her testimony strained credulity considering that she had a salary, received child support and had received $12,000 from refinancing of the house.

Wife prevailed. The court explained that the party alleging dissipation has the initial burden of proof. Proof that a spouse has made sizable withdrawals from bank accounts under his or her control is sufficient to support a finding of dissipation. Faced with prima facie evidence of dissipation, Wife then had to produce sufficient evidence to show that the expenditures were appropriate. However, the ultimate burden of persuasion remains with the party alleging dissipation. Husband simply failed to persuade the trial judge. While I have been successful in obtaining rulings of dissipation, Maryland Divorce Lawyers know that it is not uncommon for trial judges to reject claims that marital assets have been dissipated.