Skip to main content

Is a spouse responsible for restitution in federal bank fraud?

Minneapolis, MN |

My spouse is guilty in federal bank fraud. Am I responsible for his restitution? Can property that I own be seized?

Attorney Answers 3

Posted

No. Only your spouse is responsible for the restitution or fines as a result of his or her conviction. Your spouse's interest in any property that he or she owns jointly with you may be levied, althogh the likelihood of such levy depends upon the ratio or equity to value in the property.

Joshua Sabert Lowther, Esq.
NATIONAL FEDERAL DEFENSE GROUP
jlowther@nationalfederaldefense.com
http://www.NationalFederalDefense.com
866.380.1782

Mark as helpful

Posted

No you cannot be held responsible for your spouse's restitution obligation. Property that you solely own cannot be seized. Jointly owned property has the potential to be seized, but the government may be reluctant to pursue this especially if you live in a state where marital property is owned as tenants in the entirety-- partitioning the property and attempting to sell your spouse's interest in the property becomes complicated and expensive for the government to pursue.

Mark as helpful

1 lawyer agrees

Posted

Property that was obtained with the ill gotten gains has the potential to be seized. For example, if your income is limited, but some expensive automobiles were paid for in cash then there is the potential that the vehicles could be seized. The scenario holds true for any assets you may have obtained during the period. You know whether or not you lived outside your means so you would know better at which assets are likely to be considered for forfeiture.

There are four doctrines in criminal and civil forfeiture law. The four doctrines include: 1) the relation back doctrine, the heart of forfeiture law; 2) the innocent owner exemption; 3) property subject to forfeiture; and 4) disproportionality. The difference between civil and criminal proceedings are that in civil proceedings some tests are subjective and in criminal proceedings those same tests may be objective.

To simplify the typical forfeiture process, the standard is not beyond a reasonable doubt for the Government to prove that the property should be forfeited. It is a lesser standard, hence making it easier for the Government to prevail. Therefore in forfeiture law, the Government only needs to contend that the seized property is subject to forfeiture. Under asset forfeiture law the best strategy is to trace the proceeds to a legitimate purpose and not to a bank account or a relative.

The response above is not intended as legal advice since it’s impracticable to provide thorough, accurate advice based upon the query without additional details. It is highly recommended that one should seek advice from a criminal defense attorney licensed in your jurisdiction by setting up a confidential meeting. Moreover, this response does not constitute the creation of an attorney-client relationship since this message is not a confidential communication because it was posted on a public website, thereby publicly disclosing the information, which is another reason to setup a confidential meeting with an attorney.

Mark as helpful

1 lawyer agrees

1 comment

Robert M. Herz

Robert M. Herz

Posted

Mr. Cernyar is correct of course regarding the forfeiture aspect although I understood the question as more directed at assets being seized to satisfy a restitution order. In either instance, my answer assumed you were an innocent owner. If you were a "straw" owner or buyer-- in other words you spouse used proceeds from the fraud to buy a house or car and titled the property in your name-- sometimes referred to as being a "nominee" owner, then the fact you "own" the property or its in your name is irrelevant. But of course if these facts are true you would have potential criminal liability yourself for participating in the scheme. Many in mortgage fraud schemes who have agreed to be straw buyers have been charged and convicted. I would assume the government has no reason to believe you were involved in your spouse's fraud since it does not appear you have been charged and your spouse has already been convicted, sentenced and ordered to pay restitution. How the government can go about satisfying a restitution order is different from whether assets you have might be subject to a civil forfeiture action. It seems unlikely that assets in your name can be used to satisfy your spouses restitution order. But as Mr. Cernyar points out those same assets could be subject to forfeiture whether you participated in the fraud scheme or not.

Criminal defense topics

Top tips from attorneys

What others are asking

Can't find what you're looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer

Browse all legal topics