If you have been the subject of a freezing order in a divorce you may be experiencing a lot of financial turmoil in your life. You may be unclear why the freezing order was established in the first place or question the financial thresholds placed upon you. Your spouse is likely concerned you will dissipate the assets in the marital estate or move them out of reach from the local jurisdiction. Yet, you might have a different perspective. You may be feeling:
- the financial limitations placed on you as onerous
- you need more money to pay your living expenses and defend yourself
So, what can you do if your assets have been frozen and you want to unfreeze them? First, it is wise if you act quickly. As time moves forward the court can view your abiding by the established order as evidence that you have enough money to provide for your standard of living as well as for your defense. Before you start the process you will want to ask yourself whether you want to seek a complete discharge or a modification of the order. This is an important question to address as it will fundamentally influence your strategy. Obtaining a complete discharge is unlikely and often hard to obtain. Either way you will need to:
- Engage the help of a family law expert who specifically understands how to navigate the legal system to unfreeze your assets
- Engage the help of a divorce finance expert who can prove your case through the numbers
You may choose to engage the divorce finance expert first as the numbers make your story hold water. If you do not have the numbers in hand then your legal positions will likely have less weight. You will want to know how you will support your argument before making an application for the modification.
Let’s get into some more details about the process to unfreeze a court order that has frozen your assets beyond what you deem is reasonable for your situation. Your assets were likely frozen through the temporary orders issued by the court. There may be an umbrella phrase that states all of your assets are frozen or some limitations that are set inside the order based on what the court deems is reasonable for your situation. Read the clauses in your temporary orders carefully as they are currently controlling your financial life which needs to be alleviated. The less specific the orders are (i.e. the more vague they are) the more likely you are experiencing financial stress. As the defendant, you want the temporary orders to be highly specific and limiting.
If you are the plaintiff in the case, your need to access the assets may be far less than the defendant’s need for access. Why? As the plaintiff you may be receiving spousal support which reduces your need to access funds. You may choose to have the terms and conditions broad and overarching. Yet it is not a good idea to place a very tight financial squeeze on the defendant. The defendant will retaliate in kind during the divorce process.
As the defendant you are consuming monies in terms of spousal support which is limiting not only your ability to live but also limiting your access to funds for your defense. Furthermore, as the defendant you usually have to prove why the demands placed on you are unreasonable. The need to prove your position will cost you more money than what it might cost the opposing party.
In other words the thresholds set inside the temporary orders may make sense for the plaintiff (or not even impact the plaintiff whatsoever) but not make sense for the defendant. Each party may have different living needs and different divorcing requirements too. Some people are more detailed than others as well or see the world differently to communicate their point of view. If you are a person who sees it important to have a strong command over the details (highly recommended) then you will need monies for your defense to make your case.
The way to remove (or modify) a freezing order is to have your attorney submit a request to the court to discharge or modify the financial restraining order. Through this process, you will need to clearly define:
- your financial needs at the time of the order
- the limitations imposed upon you and how they have impacted your financial flexibility
- whether you have experienced a change in circumstances since the order was originally established
- whether you want to have the order completely discharged (unlikely) or modified
- if you are seeking a modification, to what extent do you want the order modified and why
- why your requested modifications makes sense
- how you intend to utilize the modified thresholds or access to funds (optional)
- why a change should be justified by the court
- whether you pose a risk to the plaintiff of dissipating the assets of the marital estate or placing them beyond the reach of the plaintiff (e.g. move the assets to another country)
- whether the funds will be deemed an early distribution or a continual dissipation of the marital assets for later division of the property
Through this process you may be thinking through how the thresholds were established in the first place and put forth relevant arguments how to challenge the original thinking process. Just be careful in this process as the Judge may be the person who established the original thresholds from her or his experience. If you are challenging the thinking process of the Judge, know how to properly position your challenge so you can obtain your desired outcomes. For example, you may introduce into the equation that the Judge may not have had full information in hand to define your true needs given your specific situation. Demonstrating your critical thinking in a logical order is key. Through this process you will want to show your then-current financial position, cash inflows and outflows, your new financial position, among other requirements to substantiate your case.
It is important to note, you may have assets that are considered pre-marital assets which have also been frozen. If you do have pre-marital assets and can provide relevant evidence to that fact you may choose to have those assets unfrozen to grant you some flexibility. Usually unfreezing assets requires a multi-pronged strategy. It would be unwise to go to the court to request unfreezing pre-marital assets and lose that argument to then return and ask for a removal of the assets under a different strategy. You want to put your best foot forward and make your positions accordingly to obtain the discharge or modification in a holistic manner. In other words, plot your strategy in a diligent manner and make sure you have all of your bases covered before submitting your argument.
If you decide to submit an application to discharge or relieve a freezing order the court may request the opposing party to provide their perspective before a final decision is made. Furthermore, any information you provide may be provided to the other party and used as evidence against you. So, you have to be wary how your are managing your financial negotiating position throughout this entire process.
After you submit your request and receive a date from the court for your court hearing you will want to have what is referred to as a Skeleton Argument prepared. This Skeleton Argument is exactly the way it sounds. It is similar to an executive summary of your case which outlines the key facts and rationale for your modification as highlighted above. It is not the Affidavit which contains all of your details. It is a higher level document that summarizes the details pertinent to the current discussion. The Skeleton Argument outlines the facts and related legal arguments to request a discharge or modification.
Another issue that arises is the timing of the request for a modification. If you submit your request and a deadline is set but you do not have your information and related position ready to go then you may find yourself in further hot water as you were not able to comply with the requested deadline. You may discover that certain information is not within your reach where your spouse is restricting you from gaining access to that information. You may have to take a step to gain access to that information before requesting a modification. If you cannot gain access you may have to make reasonable estimates. The point is get your financial story and rationale well defined before submitting your request. This way you will not annoy the Judge and have points go against you if you cannot create a compelling argument.
The challenge is time is not on your side as you are experiencing financial turmoil. You will need to invest time and money into the process which makes things appear worse in the short term. Yet, it is necessary to get you to a new position so you only pay your advisors for a short period of time compared to not having enough money for your defense and also paying the opposing party for a much longer period of time throughout your life.
If you need help with this process, reach out and we can help. Our contact information is below.
About the Author
Larry Smith is a Founding Partner of Divorce Outcomes, a specialized professional services firm that manages all of the financial aspects in a divorce process. Since 2003 he has worked as a trusted financial advisor, financial advocate, divorce architect and technical financial expert; he is not an attorney. He is an alumni of KPMG and Andersen with expertise in technical accounting, forensics, sophisticated taxation, management consulting, risk management, advanced process engineering, business combinations, divorce management, multi-party negotiations, advanced quality analytics and cognitive performance technologies. Since 1986 Larry has been advising individuals and organizations about innovative financial solutions to resolve complex financial challenges that arise in life and in business.
For both personal and business divorces, Larry is considered an expert in divorce strategies, divorce process management, financial divorce architecture, financial risk management, taxation for divorces, financial divorce forensics, advanced divorce analytics, financial divorce negotiations and mediation, business valuations and sophisticated equity structures. He helps clients shape complex financial decisions, manage communication risks and ever-changing negotiating positions to strategically preserve or grow wealth from these types of transactions.
If You Have a Question
If you have a question, feel free to contact me at [email protected] or 617-680-5222. The call is free. I will spend 30–60 minutes with you. I will provide you an honest assessment as to where I think you are positioned in your divorce process or answer any questions you have. I may provide you some guidance, insight or advice that you can take with you as you wish. There is no obligation to move forward. The phone call is designed to ease your fears, provide you some options to pursue and a potential road to run on that can lead you down a path to achieve a successful outcome.
About Divorce Outcomes
Divorce Outcomes is a specialty services firm that helps people both domestically and internationally manage all of the financial decisions that arise in their divorce process. We are not attorneys. We are financial experts who partner with our clients as their personal financial advocates. We help our clients manage their divorce process, uncover hidden financial risks, architect divorce solutions, manage ever-changing negotiating positions, communicate complex financial matters and close the divorce process as soon as possible with a goal to arrive at the best outcomes possible. Throughout the process we evaluate the current state of our clients’ financial lives with an objective to best reposition their future. We do not sell any products. We simply raise issues that are in our clients best interest. Our clients share with us we:
- unfold, analyze and repackage their financial life so they are well positioned after their divorce
- preserve the value of their business or marital estate
- continuously strive to provide a return on our services
- build balanced financial solutions grounded in evidence
- find ways to make our client, and at times both parties, money through the process
- design their divorce to work for them and their family’s life
- provide mental clarity to make decisions
- reduce the total process time from start to close
- minimize the stress and unpleasant memories that can last a lifetime
As we reach an agreed upon settlement structure, we help our clients identify a fitting attorney who can leverage the financial solution to draft and record the requisite legal documents. Where outcomes are at risk from a traditional process, we function as expert financial negotiators or financial mediators to turn around the situation and achieve our client’s desired outcomes.
This communication is for general informational purposes only which may or may not reflect the most current developments. It is not intended to constitute formal advice or a recommended course of action as every person’s situation is unique and different. The information here is not intended to be, and should not be, relied upon by the recipient to make a decision without professional guidance.