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LegalGems
LegalGems, Lawyer
Category: Family Law
Satisfied Customers: 7629
Experience:  Experienced Family Law Attorney
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My question is this I have not been served yet and I want to

Customer Question

My question is this I have not been served yet and I want to sell my cars can I do that until I am served
Submitted: 11 months ago.
Category: Family Law
Expert:  LegalGems replied 11 months ago.

Thank you for requesting me;

The orders are not effective until they are actually served on the person.

However, because of the fiduciary duties one spouse owes the other, one spouse should not unilaterally sell marital property, otherwise they can be sued for breach of the fiduciary duty.

This can be avoided by asking the other party's consent and getting it in writing- this would prevent the other party from claiming that they had no knowledge of the sale and did not consent.

Customer: replied 11 months ago.
What if the two cars in question are titled in my name only my other question could I gift them to somebody ?
Expert:  LegalGems replied 11 months ago.

If they were acquired during the marriage, even if titled in one's name, then they are still considered marital property.

The fiduciary duty applies to any kind of transfer - so for example, if husband gifts marital property to a third party, without wife's knowledge or consent, wife may request reimbursement from husband for the fair market value of that property.

Customer: replied 11 months ago.
Ok because I thought when we spoke yesterday you said if it was titled in my name only it would not be an issue the two cars in question are older cars in need of Repair one of them is not worth much so I am not real concerned about having to reimburse her my next question after I am served and I sell them what could they do to me legally
Expert:  LegalGems replied 11 months ago.

One can sell since the orders are not yet in effect; however, under the fiduciary duty rule, the court can order reimbursement for the fair market value.

If it is sold, then during the divorce proceeding the other spouse can ask the court to credit her side of the property division with her share of the fair market value of the cars in order to compensate for the unauthorized sale.

If there is no value, then there is nothing to credit, so to speak.

a party cannot be held in contempt of court until an actual court order is violated.

Customer: replied 11 months ago.
can I sell those cars even if I was served and do I understand that no court order is violated ?
Expert:  LegalGems replied 11 months ago.

No; if served, that would be violating the court order.

If not served, then the cars could be sold, but the court could order reimbursement to the other spouse.

Customer: replied 11 months ago.
What could they do to me is what I am asking legally
Expert:  LegalGems replied 11 months ago.

They can void (cancel) the sale;

they can order reimbursement of the other spouse's fair market value

if the order is issued and the sale occurs after that, under the contempt process they can order the following:

1. fines paid to the court

2. attorney fees paid to the other spouse

3. jail time (for violating a judicial order)

So it is not recommended to violate a court order.

Customer: replied 11 months ago.
Ok I understand I have not been served yet I am going to try and avoid being served until I sell those cars
Expert:  LegalGems replied 11 months ago.

Evasion of service can result in the court ordering the party avoiding service to pay the cost of service so please keep that in mind. I would urge you to speak to an attorney especially if you expect the divorce to be unfriendly.

Customer: replied 11 months ago.
I understand but they have told me twice they were going to be here and still haven't showed
Expert:  LegalGems replied 11 months ago.

That would not be evasion; evasion is leaving when one knows they are coming.

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