Payment of Temporary Support with Marital Funds

When marital property is spent by one spouse alone in the closing days of a marriage, the expenditure will be scrutinized carefully by the divorce court. If the expenditure was not for a valid marital purpose, the funds spent will be added back to the marital estate, and will be awarded to the spending spouse as part of that spouse’s share of the marital property. The spending spouse usually bears at least the burden of producing evidence, and often the full burden of proving, that the funds were spent for a proper purpose. The net effect of the rule is a particularly structured form of unequal division in favor of the innocent spouse.

There is substantial authority that the living expenses of the parties are generally a marital purpose. But there is something inherently questionable when the supporting spouse uses "their" funds to satisfy "his" or "her" support obligation. The results reached by the reported cases differ significantly, but no case has yet analyzed the issue especially clearly.

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