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Property Misplaced Previous to Divorce No Longer Exists and Can’t Be Marital Property

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Flannary v. Flannary, 121 S.W.3d 647 (Tenn. 2003)

Property Misplaced Previous to Divorce No Longer Exists and Can’t Be Thought-about Marital Property

Within the run-up to Y2K, Mr. Flannary determined that the couple’s cash wasn’t protected within the financial institution.  Due to this fact, beginning in September 1999, he began making withdrawals, both $8000 or $10,000 at a time, in hundred-dollar payments.  He positioned the cash, totaling $48,000, in his bed room drawer, with a plan to place the cash again within the financial institution in January 2000.  However when the brand new 12 months handed with out chaos, he went to get the cash, solely to find that it was gone.  He later admitted that the thought was “silly,” and that he by no means considered placing the cash in a protected deposit field.  He accused his spouse of taking the cash.  Not solely did she deny it, however she contended that she didn’t even learn about it till the accusations.

Quickly thereafter, they had been in divorce courtroom, and the disposition of the $48,000 was one of many key points.  The trial courtroom agreed that placing the cash within the drawer was a nasty concept, noting that even placing it in a fruit jar and burying it within the again yard would have been safer.  The trial courtroom held that the $48,000 was marital property, and needed to be “divided like another marital property.”  Accordingly, the spouse was granted a judgment in opposition to the husband within the quantity of $24,000.

The Court docket of Appeals, with one decide dissenting, reversed.  It held that because the cash had disappeared previous to the divorce, it was error to divide property that wasn’t there.

The Supreme Court docket handled the problem considerably in a different way.  It famous that each events testified that the cash was not of their possession, and the trial courtroom had even conceded that neither celebration knew what occurred to it.  Due to this fact, the cash wasn’t owned by both celebration on the time the grievance was filed.  Since neither celebration owned the cash, it didn’t match throughout the definition of marital property.  For that motive, the trial courtroom had erred in together with it within the marital property.

It ought to be famous that the courtroom didn’t go fairly as far as to declare it separate property.  Nonetheless, it cited Brock v. Brock, 941 S.W.second 896 (Tenn. Ct. App. 1996) for the proposition that the property was not marital property.

Despite the fact that the excessive courtroom reversed the trial courtroom’s principle of the case, the husband was not out of the woods.  The courtroom famous that in making the distribution, the courtroom is to contemplate all related components, together with the actions of the events all through the wedding.  It identified that it was the husband’s careless actions that resulted within the disappearance of the cash, and that this was a related issue.  It remanded the case to the trial courtroom to contemplate the relevance of the husband’s conduct with respect to the lacking cash.

This publish is a part of a sequence, Appreciation of Separate Property: The Forensic Accountant’s Full Employment Act.

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