A legal note from Marshal Willick about the mis-use of waste claims in divorce litigation, the proper limits of such claims, and what judges should do to compensate for mis-use of those claims.
The law of “waste” (dissipation) claims was framed 30 years ago, and refined in the 2019 Kogod decision. Some attorneys, however, blatantly mis-use the doctrine, greatly exceeding the permissible scope of such claims. Those lawyers should be called out for that behavior, and judges should use findings of mis-use as a basis for a burden-shifting fee award against the client, the attorney, or both.
I. BACKGROUND: LOFGREN AND PUTTERMAN
While dissipation or waste claims have been “a thing” for many years, the law was significantly developed in a pair of decisions by former Family Court Judge Robert Gaston in the 1990s, which cases were decided not long after Nevada changed its community property law from “equitable” to “presumptively equal” division, which is to only be varied from upon written findings of “compelling reasons” for an unequal distribution of property.
Lofgren v. Lofgren, 112 Nev. 1282, 926 P.2d 296 (1996) was the Nevada Supreme Court’s first interpretation of the 1993 amendment to NRS 125.150 in which Nevada changed its community property law from “equitable” to “presumptively equal” and required courts to make an equal distribution of community property unless “the court finds compelling reasons” to do otherwise.
In Lofgren, the trial court found that the husband had transferred about $100,000 to his father, his children, and for improvements and furnishings in an apparently non-community residence, in violation of the joint preliminary injunction (JPI). The district court compensated the wife by awarding her half the sum found to have been wasted or secreted.
The Supreme Court affirmed, holding that “If community property is lost, expended or destroyed through the intentional misconduct of one spouse, the court may consider such misconduct as a compelling reason for making an unequal disposition of community property and may appropriately augment the other spouse’s share of the remaining community property.”
The next year, in Putterman v. Putterman, 113 Nev. 606, 939 P.2d 1047 (1997), the same judge found that the husband had refused to account for finances over which he had control, that he had charged several thousands of dollars in credit card debt after the separation, which the wife paid, and that the court believed that the husband was lying about having no income. The district court made meticulous findings for why it found “compelling reasons” for an unequal division of property.
The Supreme Court affirmed, discussing possible types of compelling reasons, financial misconduct in the form of one party’s wasting or secreting assets during the divorce process, negligent loss or destruction of community property, unauthorized gifts of community property and possibly, compensation for losses occasioned by marriage and its breakup.
The Court distinguished hiding or secreting assets during divorce proceedings, on the one hand, from “undercontributing to or overconsuming of community assets during the marriage” on the other, holding:
Obviously, when one party to a marriage contributes less to the community property than the other, this cannot, especially in an equal division state, entitle the other party to a retrospective accounting of expenditures made during the marriage or entitlement to more than an equal share of the community property. Almost all marriages involve some disproportion in contribution or consumption of community property. Such retrospective considerations are not and should not be relevant to community property allocation and do not present ‘compelling reasons’ for an unequal disposition; whereas, hiding or wasting of community assets or misappropriating community assets for personal gain may indeed provide compelling reasons for unequal disposition of community property.
This was the basic framework in which waste claims were brought for the next 25 years.
II. KOGOD REFINES, AND MUDDIES, THE ANALYSIS
Kogod v. Cioffi-Kogod, 135 Nev. 64, 439 P.3d 397 (2019) asserted that “waste” claims should be confined to the time period of the breakdown of the marriage, but actually went both ways on the question, in its varying analysis of three waste claims: “potential community waste” expenses for multiple years leading up to the divorce; money expended on extramarital affairs; and money spent on gifts to friends and relatives.
The facts of Kogod were pretty extreme. The parties married in 1991, but the husband picked up his second “wife” in 2004 while living separately from the wife, and had children with her in 2007. At trial, the husband claimed that the parties “were essentially living separate lives” as of 2009, but the wife disputed that and claimed that through that time they spoke every day, sometimes multiple times per day.
The husband had filed for divorce in 2010, but dismissed the case and the parties “informally separated” the same year. The wife filed for divorce in 2013, and found out about the “second wife” sometime thereafter. The husband picked up yet another girlfriend in 2015. The divorce decree was filed in 2016.
There were three categories of waste claims at issue in the divorce:
- First, what the wife’s expert called the husband’s “potential community waste” expenses for multiple years leading up to the divorce.
- Second, money expended on extramarital affairs. And
- Third, money spent on gifts to friends and relatives.
The Court analyzed the three of them differently, without clearly enunciating the basis for the distinctions.
In terms of definition, the Court equated “waste” with the Am Jur definition of “dissipation,” which it said “refers to one spouse’s use of marital property for a selfish purpose unrelated to the marriage in contemplation of divorce or at a time when the marriage is in serious jeopardy or is undergoing an irretrievable breakdown.” 24 Am. Jur. 2d Divorce and Separation § 524 (2018).
In other words, a critical part of the definition used in the case had to with timing; the Court even quoted Black’s Law Dictionary that it is “use of community property for personal benefit when a divorce is imminent.” That fit with the prior holdings, since Lofgren and Putterman distinguished non-compensable “undercontributing or overconsuming” community property during a marriage from “secreting or wasting assets while divorce proceedings are pending.”
But the Court only applied its announced rule that waste claims are confined to the time of divorce litigation, rather than during the rest of the marriage, for about half the waste claims, and ignored its own rule for the other half, making its announced policy more difficult to utilize in later cases.
a. Miscellaneous Expenses: Timing Is Relevant
The Court followed the earlier cases when it reversed the trial court’s “waste” finding against the husband for his inability to fully explain about $2 Million in assorted expenditures since 2010.
In that analysis, the Court touched on, but did not name, the concept of “proportionality” – noting that high-income individuals often have high expenses.
The idea is that a rich guy could blow large amounts of money on golf, or dining out, or travel, which could be a big deal in the divorce of Joe Sixpack, but not worth tracking for someone making six or seven figures a year.
But the Court did not set out any test or factors in that discussion, leaving it pretty fuzzy; the opinion was clear, however, in holding that there was not to be any retroactive audit of a marriage during which a party can be asked, years after the fact, to explain expenses long-predating the breakdown of the marriage.
b. The Second Category Is for Extramarital Affairs, in Which Timing Is Not Relevant
The Court ignored any consideration of the timing of expenditures when it affirmed the trial court’s waste finding against the husband of about $2 Million “spent on the extramarital funds and children” dating to a decade before the wife had filed for divorce. The Kogod opinion did not clearly enunciate the reason for the disparate treatment of those expenses.
c. The Third Category Was Gifts to Family, in Which Timing Is Partially Relevant
The analysis of the third category was “gifts to family” but the analysis in the case was somewhat problematic by both inclusion and exclusion.
Basically, the Court found “regular and customary” gifts before or during the divorce were unobjectionable, but that unprecedented gifts during the divorce can be considered compensable waste.
More unfortunately, the Court did not recognize, cite, or apply Nevada’s law of gifts under our “management and control” statute – NRS 123.230. The full history of the statute and case law is beyond the scope of this note, but the Court did not examine or apply any of it, and did not even specify a standard of review, leaving the law on the subject very muddled.
As to the timing issue, the Court’s analysis of gifts was unhelpful, as it did not expressly rule gifts in, or out, of the doctrine of waste as a function of the time they were made (i.e., before or after the “breakdown” of the marriage). There was a hint in that regard that gifts might follow the “during the divorce only” rule, since the Court found four transfers to be prohibited waste, in part, because they were made “after the Joint Preliminary Injunction” issued.
In my 2020 Nevada Family Law Report articles on Kogod, I expressed uncertainty whether the Court had definitively made the timing of expenditures a critical element for making a waste claim. If it is, and waste claims are strictly confined to the period of the breakdown of the marriage when “divorce is imminent,” then the waste claims from 2004 to 2010 relating to the husband’s extramarital affairs in Kogod should have been labeled “overconsumption during the marriage” under Putterman, regardless of their purpose, as to which “retrospective accounting” should not have been permitted.
Several lawyers objected to that analysis, stating that it should be a given that if the husband had both a second wife and another mistress “the marriage was in serious jeopardy.”
The problem with that response is that many marriages survive affairs and lots of other behavior, sometimes forever, and it seems intellectually dishonest to permit retroactive analysis – whether the marriage in fact ever did come to an end – to control the analysis of whether the behavior in questions is definitionally “waste.” Making it depend on later events seems to render such expenditures like Schrödinger’s cat – both OK and not OK, until looked at later.
Nor can the critical test be whether the wife knew about the expenditures, because if that was the key fact, all those gifts to family that the Court said the husband made “routinely” for years “without the wife’s knowledge” would not have been approved – and they were. (Although the Court did not really discuss the matter, this is really a matter of “implied consent” under NRS 123.230.)
My 2020 papers concluded that the Court in Kogod had accidentally re-added “fault” into a property analysis, at least where there is a waste claim involved. This is because boiling down the property and waste rulings made in Kogod results in a rule that “fault is irrelevant in Nevada property division and expenditures may only be considered waste if they are made after the marital breakdown when divorce is imminent – unless the expenditures are for an affair, no matter how far back that might have been.”
I was critical of a test for “waste” that appeared to state that timing is critical – but not always – and that fault isn’t relevant, unless it is. I invited the Court to specify whether its waste analysis is objective, subjective, or mixed, and suggested factors to use in such an analysis.
III. EIVAZI: KOGOD INTERPRETED AND APPLIED
In 2023, the Nevada Court of Appeals entered a formal opinion largely standing for the proposition that a district court judge should not blindly adopt a party’s proffered findings, conclusions, and decree, but also reversing several specific orders, including some going to marital waste. Eivazi v. Eivazi, 139 Nev. ___, ___ P.3d ___ (Adv. Opn . No. 44, Oct. 5, 2023). The judge in question has stipulated to a public reprimand for signing decrees and orders without apparently even reading them.
Eivazi filled in several of the analytical questions left over from Kogod; among other things, it reversed and remanded the $100,000+ award to the wife for marital waste, discussing at length some of the components of that award.
The COA noted the same timing discrepancy discussed in my 2020 articles, but concluded that the explanation for them is that Kogod stands for the proposition that “when community property is spent on extramarital affairs, those expenditures will almost constitute waste “regardless of when they occur, because the act of engaging in any extramarital affair is inherently inimical to the marital relationship.”
This “inherently inimical to the marital relationship” test is the lens through which the COA parsed applications of Kogod to other cases, including this one. It found gifts to family members analyzed differently than affairs, and did depend on “the timing and circumstances of those gifts.” So “long-standing and regular” gifts to family members were presumptively okay, while unprecedented gifts or greatly enlarged gifts would be suspect. Any claim of waste for such gifts by the other spouse must raise a reasonable inference of waste based on the “size, regularity, timing, and purpose” of those gifts.
Eivazi addressed the distinction between waste after a marital breakdown and “overconsumption during the marriage” by stating that a waste claim cannot arise simply from the fact that expenditures exceed a party’s monthly expenses, but requires at minimum: (1) a “reasonable inference that the transactions furthered a purpose inimical to the marriage”; or (2) that they were made to diminish the other party’s community share; or (3) that they were “unusually large withdrawals from community accounts.” In other words, it is improper to just make a list of expenditures and require the other party to retroactively disprove an assumption of “potential marital waste.”
The Court was harshly critical of counsel for having an accountant prepare a list of “unknown transactions” stretching back for six years prior to either party filing for divorce, and reversed the district court’s finding of waste upon the husband’s inability to “explain” all of those expenditures as an abuse of discretion.
The COA noted that Kogod failed to answer the question of “whether waste can occur at any time during a marriage, or whether waste can occur only after a marriage has undergone an irretrievable breakdown,” but found it unnecessary to resolve because it found improper any order requiring a party “to explain everyday expenditures over the course of several years, including before this action began, and finding waste when he failed in this task.” Echoing my conclusion in the 2020 articles, the COA held that whether the other spouse knew of the expenditures is not determinative of the question of waste.
In short, the standard is that any claim of “waste” requires allegations raising an affirmative reasonable inference that such transactions were, in fact, waste. The COA explicitly rejected a definition of “waste” as “the negligent or willful dissipation of community funds by one of the spouses, or the surreptitious and personal use of community property or funds without the other spouse’s knowledge,” labeling that proposed definition “overly expansive.”
And Eivazi made overt the notion that the other spouse’s consent to expenditures, whether for overconsumption or for gifts, could be implied under NRS 123.230. The COA expounded on this concept for a bit, noting that “reasonable support for one another’s immediate family” is normal.
On that score, the COA labeled as “clearly erroneous” any finding that the husband violated the JPI by permitting his brother and the brother’s wife to live with him without charge, since the JPI prohibits no such action. The same lawyer making the claim in Eivazi has apparently made exactly that claim in multiple other cases, at least once alleging a JPI violation when a party, sick with cancer, had a family member live in his home “rent free” to provide assistance, medical care, and accompany the party to hospitals for treatment.
IV. PROPER FEE ANALYSIS FOR BOGUS WASTE CLAIMS
It is obvious that clearly inappropriate claims of waste consume huge amounts of money for lawyers and accountants while providing at best a distraction from legitimate issues and concerns.
Once a court concludes that a party has knowingly brought a groundless or frivolous claim of waste, it should apply the “burden-shifting” fee analysis detailed in Legal Note Vol. 28 (Oct. 26, 2010). In short, the court should start with the presumption that the entirety of fees incurred are equal to the award to be made, and shift the burden of proof to the responsible party to show how those fees are unreasonable; to the degree the responsible party cannot make such a showing, the entirety of fees incurred should be awarded.
And not just against the party. If it appears that the use of a bogus waste claim was a litigation tactic to harass, or to churn the file, or both, the lawyer should be personally included in the fee award for having increased costs by over-litigating “unreasonably and vexatiously.” The lawyer can and should be held personally liable under NRS 7.085, which was intended to deter such abuse of the legal system. The statute is explicitly to be applied upon a finding that litigation is not “well-grounded in fact” or warranted by law.
As detailed in Legal Note Vol. 28, such burden-shifting fee awards are essentially restorative – placing the innocent or injured party in the same situation that party would have been in but for the harm inflicted by the wrongdoing of the other side. This “allocation” methodology is much fairer than what is typically done now, and places burdens on the parties in accordance with their responsibility.
After Eivazi, there is no excuse for the kind of unwarranted assertions of waste based on things like “unexplained” expenditures years before the marital breakdown or having a family member live in a home to provide support. Some uncertainties remain, as set out in my 2020 articles, but some such assertions are clearly, in the words of Car Talk, “The height of Bogosity.”
Where such claims are brought anyway, to harass, churn, or otherwise wrongfully, courts should use the burden-shifting methodology to hold the responsible party – and possibly that party’s counsel – liable for the full sum of fees and costs “wasted” in the exercise.
VI. QUOTES OF THE ISSUE
“Litigation – n., A machine which you go into as a pig and come out of as a sausage.”
Ambrose Bierce, The Devil’s Dictionary.
“I know it when I see it.”
Supreme Court Justice Potter Stewart, Jacobellis v. Ohio, 378 U.S. 184 (1964) (of pornography) [perhaps equally applicable to “waste”].
“Marry, sir, they have committed false report; moreover, they have spoken untruths; secondarily, they are slanders; sixth and lastly, they have belied a lady; thirdly, they have verified unjust things; and to conclude, they are lying knaves.”
Shakespeare, Much Ado About Nothing, 5.1.205-209 (Constable Dogberry, of Conrade and Borachio).
- New Cases Added to MLAW: Three COA Unpublished: Frane, Pool, & Perry - November 27, 2023
- New Cases Added to MLAW: Three COA Unpublished: Friedrich, Guo, and Hurd - November 25, 2023
- New Cases Added to MLAW: Three COA Unpublished: Summit, He, and Barrus - November 21, 2023