What is community waste and how do you prove it?

Spending up the marital assets

Community waste is a claim during divorce that your spouse wasted community funds and needs to pay you back for spending money on items, people, or services that did not benefit you or your marriage.

For instance, if your Husband regularly used a prostitute, and paid for these “services” with community funds you may have a claim for community waste. If you prove your husband “wasted” community funds, you are entitled to be reimbursed for half of the expenditures.

If your Wife had a gambling problem that you were unaware of, or you did not know the extent of the gambling problem, you may have a claim for community waste. The issue is concealment. If you knew about the gambling, or participated with her, then it will be considered a “recreational cost” and not community waste.

If your spouse had an affair, and purchased gifts or spent money traveling with his or her lover, you definitely have a claim for waste. You will need to show exactly how much was spent on the affair to establish your claim.

If, during the course of your divorce, you find massive amounts of ATM withdrawals, and spending patterns show that all normal expenditures (gas, food, haircuts, ect), were made with a debit or credit card, then you have may have a claim for waste.

I’ve also been successful in proving community waste when a spouse purposefully underperformed in a community owned business. You may find this hard to believe (insert sarcasm), but many community businesses tank during divorce. This requires very special attention and an experienced attorney.

If you think you may have facts to support a claim for waste, then you have the burden of establishing a “prima facie” case that your spouse made “excessive or abnormal expenditures”. This means you must provide evidence that your spouse wasted funds. Then your spouse will have to prove that he or she didn’t waste funds, or that the expenditures benefitted the community.

The trial court will have the discretion to determine if the withdrawals are abnormal or excessive.  Additionally, according to A.R.S. § 25-318(A) “dishonesty is not a prerequisite” Id. at 347 as long as the money was not spent on the community for the benefit of the community.

If you have proven waste, the remedy is most likely that you will be compensated for half of the money wasted by your spouse. Other possible remedies might include a higher spousal maintenance award or longer duration of maintenance. I’ve also seen the court stick the wasting spouse with all or most of the debt and leave the innocent spouse free of the credit card debt racked up by the spending spouse.

Unfortunately, I have also seen cases where a Judge will find waste and offer no remedy. This may be appealable, but at this point that remains to be seen. If your spouse has spent you into debt and there are no assets to offset the loss, the Judge is in a difficult position. In that case, it may be the best thing to ask for is either a spousal maintenance award or freedom from community debt.

Community waste is common, but not an easy case to prove. If waste is an issue in your case, it is probably best for you to seek competent representation from an experienced lawyer. Also, you cannot prove waste or go back and address this issue after your divorce. Property division , including any claim for waste, is non-modifiable after divorce.

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