In the division of property and assets in a divorce proceeding; when marital misconduct results in the dissipation of marital assets, the court can award an unequal distribution of marital assets or may assign the depleted portion of an asset to the dissipating spouse. In Lopez v. Lopez, the Florida Court of Appeal stated that: “As a general proposition, it is error to include assets in an equitable distribution scheme that have been diminished or dissipated during the dissolution proceedings.
However, ‘if marital misconduct results in the depletion or dissipation of a marital asset, a trial court may make an unequal distribution of marital property, or may assign the asset to the dissipating spouse as part of that spouse’s equitable distribution.’ Karimi v. Karimi, 867 So. 2d 471, 475 (Fla. 5th DCA 2004) (citing Bush, 824 So. 2d 293; Romano v. Romano, 632 So. 2d 207 (Fla. 4th DCA 1994)). One party’s use of an asset out of necessity and for reasonable living expenses does not justify an award of a depleted asset absent evidence of misconduct. Id. (citing Cooper, 639 So. 2d 153; Knecht, 629 So. 2d 883; Akers v. Akers, 582 So.2d 1212 (Fla. 1st DCA1991)). Attorney’s fees spent on the dissolution of the marriage are considered reasonable living expenses. See, e.g., Levy v. Levy, 900 So. 2d 737, 746 (Fla. 2d DCA 2005) (holding that trial court erred in assigning depleted asset to former wife when she spent asset funds on attorney’s fees and living expenses). The misconduct must be an intentional dissipation or destruction of the asset for one party’s own benefit and for a purpose unrelated to the marriage, not simply mismanagement or squandering of funds in a way that the other spouse disapproves. Roth, 973 So. 2d at 585 (citing Segall v. Segall, 708 So. 2d 983,986 (Fla. 4th DCA 1998); Levy, 900 So. 2d at 746). Here, the trial court found misconduct because Former Husband spent a portion of his monthly income on his girlfriend-which it reasoned would normally be available to pay for property taxes and home improvements. This finding, however, does not permit the court to allocate depleted funds that were properly used, such as attorney’s fees. See, e.g., Bush v. Bush, 824 So. 2d 293,294 (Fla. 4th DCA 2002) (holding that evidence that former husband improperly spent up to $9,000 of marital funds on his girlfriend, does not justify attribution of $43,138 in no-longer-existing assets). Indeed, the trial court’s amended final judgment properly acknowledges that attorney’s fees are ‘necessities.’ Therefore, the only depleted funds that should be allocated to Former Husband are those that the trial court found were spent on Former Husband’s girlfriend-not the 401(k)’s entire previous balance of $76,718.68.”
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