October 22, 2009
By: Ronald Scott
Remedies for Victims of Ex-Spouse's Fraud
Frequently, parties to a divorce discover after the divorce is done that their former spouse has concealed assets or income from them and the court. When a husband or wife hides income or assets, it is called "fraudulent concealment." When a spouse hides income, your attorney can go to court to have child support or alimony awards increased. When a spouse hides assets, such as bank accounts, stock accounts, or ownership in a company, it can be more difficult to fix the problem. The procedure to fix it takes longer, and the burden of proof applied by the court is harder to meet. The fact that you suspect your spouse hid assets, without some real proof, is not enough. Oneglia v. Oneglia, 14 Conn. 26 (1991).
To get your share of assets your spouse had hidden during the divorce, your lawyer has to "reopen" the divorce judgment. Usually, judgments can only be reopened within 4 months of judgment and for one of a limited number of specified reasons. The exception to the general rule applies to cases where there has been "clear and convincing" proof of fraud. Tessitore v. Tessitore, 3 Conn. App. 40 (1993). This is a harder standard to satisfy than the usual "preponderance of the evidence" standard that applied in non-criminal cases. Courts don't like to reopen a judgment since once a judgment issued, all the parties expect that the issue is decided forever. There must be a good and compelling reason to open a judgment. Hirtle v. Hirtle, 217 Conn. 394 (1991).
The landmark decision of Weinstein v. Weinstein, 275 Conn. 671 (2005) set forth standards the court will use to determine whether a fraud has occurred: 1). A false representation was made as a statement of fact, 2) the statement was untrue and known to be so by its maker; 3) the statement was made with the intent of inducing reliance thereon; and 4) the other party relied on the statement to his detriment. To get a judgment reopened on the basis of fraud, a spouse who is a victim of the fraud has more hurdles to cross. The Court has to also decide that: 1) the victim must no have unreasonable delayed coming to court after discovering the fraud, 2) there must be clear proof of the fraud and not only suspicion; and3) there must be a substantial likelihood that if the assets had been disclosed during the divorce, the result of the divorce would have been different. The place where most fraud occurs in the sworn financial affidavits routinely filed with the court, and in failure to honestly respond to discovery, which is the process in which each party finds out information and gets documents from the other side.
Because is can be so difficult to change a divorce judgment when you find out after the divorce that your spouse hid assets, it is crucial that you have a divorce lawyer who has the experience to know the right questions to ask and the right places to look to keep your spouse from hiding income or assets. If you believe your spouse has hidden bank accounts, brokerage accounts, stock in companies or other assets, it is important that you act promptly to protect your rights, and to start to process to remedy the fraud.
As long-standing Connecticut divorce attorneys, Ron Scott and the other members of the Firm's Family Law department are experienced in preventing fraud during a divorce, and helping victims of divorce fraud afterwards. They can meet with clients in any of the firm's offices in Hartford, Glastonbury, East Hampton and Bristol, Connecticut.