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The Divorce Encyclopedia
Forfeiture of Assets

Term Definition Forfeiture of Assets - a comprehensive term that means a divestiture of specific property without compensation.
Application in Divorce Forfeiture means a deprivation or the loss of property as a result of nonperformance of some duty or obligation, sometimes as a result of some illegal or improper act.

The term is also used in connection with a penalty in conjunction with premature withdrawal of funds from a dedicated account, such as an individual retirement account.

As it applies to divorce, however, forfeiture of assets (or any property) are most likely to happen as a result of the hiding of assets and forms of economic misconduct. Marital fraud is usually accompanied by perjury and lying.

When one spouse discovers the other has hidden marital assets or lied about the value, the victim has a number of remedies. If the divorce is not final, he or she can raise the issue in the divorce case. If the division has been made, the victim may in some cases turn to the agreement itself. Increasingly separation agreements and even divorce decrees contain a residuary clause that allocates nondisclosed assets. This can exercised with a motion to enforce.

Absent the residuary clause, a party may move to upset the agreement by a motion alleging fraud, and beyond that, a growing number of courts now recognize that the victim spouse may bring an action on the common law grounds of fraud. This is a tort, and generally the elements of fraud for a marital tort are 1) misrepresentation, 2) a fraudulent utterance, 3) an intention by the maker to induce a party to act, 4) reasonable reliance by the recipient upon the misrepresentation, and 5) damage to the recipient.

In any event, such actions may result in a forfeiture by the spouse who perpetrates the fraud.

In cases where a spouse is incarcerated as a result of murder or attempting to murder the other spouse, courts have made one-sided judgments in favor of the victim spouse, wherein the perpetrator forfeits any claim to the marital estate.

Applications of the entire controversy doctrine also work under the penalty of forfeiture. The entire controversy doctrine is a legal theory that, in some states, requires a litigant to bring all his or her claims from the same series events or with the same parties in one action.

This doctrine favors judicial economy and allows for a finality of judgment. It prohibits attempts to relitigate a case piecemeal and discourages frivolous litigation harassing a party.

The term forfeiture may come up in a divorce in another context. Forfeiture of assets is a tool increasing used by state and federal governments in connection with the on-going war on crime, particularly illegal drugs and money laundering. Assets tainted by funds acquired by illegal activity and used to commit or facilitate crime are at risk of forfeiture in both civil and criminal actions by states and the federal government.

Civil forfeitures, which are for more common than criminal, are said to be in rem, that is, against the property itself. An innocent spouse must move to protect her interest by establishing her innocence. This may become very important the funds used to purchase the marital home or other large assets are tainted by criminal activity, and the home or assets are subject to distribution in a divorce.

When spouses own property in a tenancy by the entirety -- that is they both have an simultaneous undivided 100 percent interest -- an innocent spouse may find protection from civil forfeiture. In some states, a homestead exception may also insulate a party from civil forfeiture under state law.

Spouses who argue that they are innocent owners in civil forfeitures and those contesting criminal forfeiture procedures face different hurdles. In the case of civil forfeiture, a spouse who acquired a property in a marital settlement after the criminal activity but before the settlement may be able to prove herself innocent. In general, knowledge of criminal activity does "not bar relief" from forfeiture, but a demonstration that "he or she was a bona fide purchaser who lacked reason to believe that the property was subject to forfeiture" must be made.

In a divorce case, a lawyer who suspects criminal activity by the other spouse may question his or her and those "help bolster the client’s innocent owner claim in subsequent forfeiture proceedings."

See Fraud; Entire Controversy Doctrine.

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