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Brandon M.
Brandon M., Family Law Attorney
Category: Family Law
Satisfied Customers: 12620
Experience:  Attorney experienced in all aspects of family law
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Still trying to deal with spouse on the issue of fiduciary

Resolved Question:

Still trying to deal with spouse on the issue of fiduciary breach. Some more questions for you....what is legally considered "excessive" spending...spending that doesn't benefit the community.....at what point does the court look unfavorably at another spouse spending? What amount? Someone pointed out that a gambling addiction would be considered, but what is legally an "addiction"? My wife would say I'm addicted to fast food, and spending in general.
Submitted: 5 years ago.
Category: Family Law
Expert:  Brandon M. replied 5 years ago.
Hello again:

You will not find the phrase "excessive spending" in any statute related to the spousal fiduciary duty. The question is whether the spouse has met their obligation of good faith and fair dealing with the other, and particularly if one has taken unfair advantage of the other, and if so to what extent. To be frank, an "excessive spending" argument is pretty weak in most situations. One spouse spending more than the other would like is generally not a breach of duty. I would encourage you to review Family Code sec. 721.

Heavy gambling is generally not considered beneficial to the community. It does not have to be an "addiction", and "gambling addiction" does not appear anywhere in the Family Code. It comes down to one spouse throwing money away to the detriment of the community--it doesn't have to be gambling.

If you don't mind my asking, I would like to review the question where an expert provided you with bad information. We all keep an eye on each other, and if someone has provided an incorrect answer it needs to be addressed on our end.
Customer: replied 5 years ago.
I'll get that to you....my issue wth my wife is that she reviewed bank statements from our joint account which she had access to btw, and discovered atm withdrawls of 1200k one month, 800 the next, and so on.....money to my recollection was spent on fast food, gas, entertainment, and massages. She also saw other charges from itunes, and eating at restaurants....I agree that my spending was over our budget, I need to know if she has a case against me to withhold cmmunity funds? It this excessive? A I in breach if I didn't tell her [though a joint acc**t]? We still had money for bills and savings....although our house fund suffered some.
Expert:  Brandon M. replied 5 years ago.
It would be professionally irresponsible for me to draw conclusions without examining the evidence in person. I can give you the law, but my professional obligation prevents me from saying whether she has a case against you. I can say that "massages" would typically be at high risk for reimbursement to the community, but the other items would not.

Again, do not fixate on "excessive". The question is whether a duty was breached.

Let me know if further clarification is needed. Also, please feel free to ask me another question – if you’re a subscriber, you can do so at no additional cost beyond your monthly payment. Please bookmark my profile page here so you can come back and ask me a question anytime: http://www.justanswer.com/law/expert-trialmaster/. Thank you.

Customer: replied 5 years ago.
Sorry till confused because the law seems unspecific as to when how I spent my money is breach. Gambling isn't wrong, so when does it become grounds for breach? Nothing wrong with getting a massage, when does it become grounds for breach? Because the spouse doesn't like it? Legally, when does descretionary spending become misappropiration?
Expert:  Brandon M. replied 5 years ago.
You are looking for a clearly defined line--it does not exist. The law is fuzzy, which is why we have courts and judges instead of robots and calculators. There is a breach when the spouse has failed to meet their obligation of good faith and fair dealing with the other, or where one has taken unfair advantage of the other. That is the rule. I understand that your wife is making these claims and I understand that you want to know if the claims are valid, but there is no bright-line rule; there is just the language of the law, and judgment, experience, and common sense fill in the gaps.

Let me know if further clarification is needed. Also, please feel free to ask me another question – if you’re a subscriber, you can do so at no additional cost beyond your monthly payment. Please bookmark my profile page here so you can come back and ask me a question anytime: http://www.justanswer.com/law/expert-trialmaster/. Thank you.

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Customer: replied 5 years ago.
Wow..yes very vague...like: what is considered "obligation of good faith"? This is all unsettling...not knowing what is too much spending! I guess she can hire an attorney to fight my request for my half of the assets [actually asking for less] :( according to you, though, I beieve you said the burden of proof is hers correct? So what is the process for proving her claim?
Expert:  Brandon M. replied 5 years ago.
The burden of proof is hers, yes. Basically, there are two ways to resolve a divorce: (1) by agreement, or (2) by decision of the court after trial. You can negotiate with her and her attorney (if she has one) over how to resolve any dispute under the law, but if you cannot agree then the court will decide for you. If it goes to the court, you will each be given the opportunity to present your facts and arguments, and the court will decide the proper outcome based on the totality of the circumstances and the intent of the law.

Ultimately, it comes down to common sense. A bad family law attorney will throw weak arguments on the table as negotiating leverage even though it won't hold water in court. Perhaps that is what is happening here.
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Customer: replied 5 years ago.
Thanks you've been a great service..last question...am I required by law to fully disclose all financial matters? I ask this beacuase her arguement is I didn't tell her my full income or spending. Wouldn't this not apply since she hd access to my bank being joint?
Expert:  Brandon M. replied 5 years ago.
There is a duty for a spouse to disclose their assets to the other spouse. However, if you had a joint bank account, if your earnings were going into that bank account, and if she had access to that bank account (which would include access to account information), I don't know why she wouldn't regard that as sufficient. Does she expect a notarized letter? Am I missing something here? Again, "common sense".
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Customer: replied 5 years ago.
Unfortunately she is filing for divorce because I lied about an instance where I used a check cashin service..I deposited all but a hundred into our account for spendng money. Wife is controlling especially in money matters...so yes I did "hide" the hundred from her to avoid the agrument...she now thinks I've done this many times over...this is where her suspicions come from....this is her only proof she has and our bank statements
Expert:  Brandon M. replied 5 years ago.
Still, it is not a situation where the spouse is entitled to all of your assets because $100 was hidden. When assets are hidden, the typical risk is that the hidden asset will be forfeited. So, for example, if you hid $100 from the community, you would typically lose that $100. So I am sorry... you may have to reimburse her for that $100. I do not know if she has really consulted with legal counsel or not, or (if she did) what she told that person, but the law is designed to have a proportional response to any fiduciary breach.
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Customer: replied 5 years ago.
I was told id have to compensate half since half is mine....wrong?

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