NSW Asset Protection

[Atticus]

in regards to fraudulent, what law is it breaking?

Here's a couple to get you started

Criminal...

CRIMES ACT 1914 - SECT 15GE Meaning of serious Commonwealth offence and serious State offence that has a federal aspect

CRIMES ACT 1900 - SECT 192E Fraud

Family law .... A FCCoA Judge can refer acts of fraud to the fedral police or DPP for prosecution if it's serious enough

FAMILY LAW ACT 1975 - SECT 79A Setting aside of orders altering property interests

 

[Dpj]

Imo it would be a long bow to try and be convicted of fraud in this instance. Trying to proove intent to divorce, that you knowingly knew that despite the asset not being in the other person's name that they'd have a right to it in case of divorce. People aren't family law experts? A case of fraud would have to show a person knew their partner had claim - highly unlikely. Imo it's got very little hope of ever getting up. That's why there is a 12 month prior to separation (or whatever) clause as the system doesn't expect people to plan a divorce further away and thus get rid of assets. So the reference to the family law deception part is if soneone didn't disclose financials - but in this case all disclosure would be there (12 months worth). Also, if financial orders are consented to it would be highly unlikely court would look at a change years down the track. If company financials show the assets the OP wants to dispose then it will show in 3 years of financials as required.

1) discloser of financials is 12 months. Sells prior, divorces, how is anyone going to know?
2) the likelihood of a successful fraud trial amd the cops actually giving a s**t in this example imo is extremely small. Infantisimally small.
3) family members can hold onto assets for years. Gift it back at a much later date.

What does the OP think?

Any lawyers around to comment?

 

[Dpj]

Atticus, can you show me where a party must disclose assets sold more than 12 months before separation? Or a judgement showing a judge forcing disclosure of sold assets further back than 12 months?

I'm holding ground here that fraud is not reverent here or would be impossible to proove.

 

[Atticus]

To be clear, what you proposed to the OP regarding disposing of assets & retaking them at a later date for the sole purpose of defeating a rightful claim by his spouse so as to gain a financial advantage IS fraudulent, no if buts or maybes ….. So, what you’re really asking is can you get away with it?

Likelihood of being charged & prosecuted? ...... will depend on the evidence & seriousness but not likely

Likelihood of it negatively affecting your family law case if discovered? ...... If serious, quite high.

Now while the rules mention the 12 months preceding final separation to declare assets disposed of, that shouldn’t be confused with having to declare & provide documents for the disposal of significant assets prior to that if they are substantial in nature or of material value to the outcome, AND some evidence can be subpoenaed to support the disposal.

The court also has the power to alter property interests on assets already disposed of & apply an addback, essentially adjusting the final figure as you having already received the value of the asset you disposed of.

To be clear. When we are talking about disposal of assets, I doubt anybody is going to be too concerned with your 2005 model magna, we are talking about assets of significant value that may have a substantial effect on an outcome. Such assets can rarely be disposed of without some evidence.

The court also has the power to review & set aside orders at ANY time in the future if an applicant can provide enough evidence of fraud.

Do you really think that all a person has to do is gift away assets or sell them to friends 13 months prior to separating & that’s the end of it? …. C’mon now.

 

[Dpj]

To be clear, what you proposed to the OP regarding disposing of assets & retaking them at a later date for the sole purpose of defeating a rightful claim by his spouse so as to gain a financial advantage IS fraudulent, no if buts or maybes ….. So, what you’re really asking is can you get away with it?

Likelihood of being charged & prosecuted? ...... will depend on the evidence & seriousness but not likely

Likelihood of it negatively affecting your family law case if discovered? ...... If serious, quite high.

Now while the rules mention the 12 months preceding final separation to declare assets disposed of, that shouldn’t be confused with having to declare & provide documents for the disposal of significant assets prior to that if they are substantial in nature or of material value to the outcome, AND some evidence can be subpoenaed to support the disposal.

The court also has the power to alter property interests on assets already disposed of & apply an addback, essentially adjusting the final figure as you having already received the value of the asset you disposed of.

To be clear. When we are talking about disposal of assets, I doubt anybody is going to be too concerned with your 2005 model magna, we are talking about assets of significant value that may have a substantial effect on an outcome. Such assets can rarely be disposed of without some evidence.

The court also has the power to review & set aside orders at ANY time in the future if an applicant can provide enough evidence of fraud.

Do you really think that all a person has to do is gift away assets or sell them to friends 13 months prior to separating & that’s the end of it? …. C’mon now.

Unfortunately my experience with family law and courts is they don't really go hunting for the truth and even if shown it doesn't really matter. So law vs reality is a factor. If the OP gifted an asset to his family, consented to financials, then several years later git it gifted back, in light that the ex doesnt know about these assets, the chances of getting caught are so minute and even if he did to prove fraud beyond reasonable doubt is another stretch. My ex was earning $170k, claimed she was earning $30k, didn't matter. She disposed of an asset for 1/5th of the valuation 2 months afterward the val and before final trial, it didn't matter. So do I actually believe the courts care - no I don't.

My personal experience shows me that you lose playing fair

 

[Atticus]

prove fraud beyond reasonable doubt is another stretch.

As I said, the chances of being charged & prosecuted for fraud is unlikely, however, IN THE CONTEXT OF FAMILY LAW, the judge has only to be satisfied beyond reasonable doubt that fraud or non disclosure has occurred. A much lower bar.

 

[Dpj]

As I said, the chances of being charged & prosecuted for fraud is unlikely, however, IN THE CONTEXT OF FAMILY LAW, the judge has only to be satisfied beyond reasonable doubt that fraud or non disclosure has occurred. A much lower bar.

Just for some real life reference. I found out yesterday my ex had a business she did not disclose. Set up 6 months before financial orders. Had 5 employees at the time of financial orders. She also was earning $167k (investigation by DHS) but told court she has $2000 and thus got legal aide. I rung my lawyer. He said that unless the business valuation at the time was material to which I'd have to prove then it is pointless. He said there is no chance. He also confirmed system doesn't care about cheats and liars.

Reality vs law is not the same. Unfortunately I learnt the hard way by playing fair. I shoukd have listen to my mate who has hat to litigate a few times in his line of business. He said - you got to get a lawyer that goes for the jugular. Best advice I never took. Atticus is playing fair, I'm suggesting play dirty.

 

[Tim W]

None of the actual lawyers here will suggest playing "dirty".
Playing hard... for sure. At all times.
But dirty? Not so much.

 

[Dpj]

I'm sure none will. Playing hard then. Probably a fine line there. But in my experience (only 1 divorce mind you yet been in court nearly 10 times), lies and dishonesty were not only allowed but in a way rewarded as once found out and exposed they weren't punished.

 

[Atticus]

" playing hard" BTW does not involve condoning or advising fraudulent behavior or deliberate non disclosure.

If they were "found out & exposed", Did you appeal the outcome? ... No time limit to have orders set aside if you have the evidence