Wife is now stating that she is going to sue the husband for fraud. They are currently separated.
Is this possible? What is likely to be the outcome?
Estate Planning Attorney
Anyone can sue anyone else for nearly any reason; the question is whether they can succeed.
Here, it is unclear why she would assent and then object. If she did indeed agree to your cashing the check, you sent her a check for her half, so there is nothing to object to by her. If you are estranged, which is why I presume you would "send" your own wife money, you would have done so with a check so you have proof she got her share.
There is no issue on which she can sue that I see; I wouldn't take the case. You may also have had a joint checking account where both spouses can deposit money.
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Since she received her share of the money, the question would be, “what are her damages?”
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In general, a spouse may sign for his or her spouse when the outcome is either obligatory on the couple (such as a mutual tax liability) or is mutually beneficial.
It sounds as if the husband has endorsed a check written for the couple during their marriage (joint filing) but in the mean time they have separated.
If the amount due the wife is 50% of the check, then there are no damages to sue for. She got what she had coming. If she is actually due MORE than 50%, then the damages are that amount.
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To answer the question as you presented it: no, the wife can't sue the husband for fraud, since he didn't misrepresent anything to her. He submitted a document to the IRS, apparently without indicating that he had power of attorney. He isn't liable to the IRS for civil damages, since neither spouse recovered more than they were entitled to.
The outcome of this matter all depends on how the trier of fact finds the testimony regarding the verbal permission. In other words, credibility.
To win a lawsuit, she would have to be able to show that he somehow unlawfully converted funds she owned. There aren't enough facts in the question to know the answer with any certainty, but she has a weak case. For example, what was the reason for the refund? Overpayment of tax? Credits for children? If so, who has custody of them? Why would she have been entitled to more of the refund?
This answer is not specific legal advise. No attorney client relationship has been established. It is general commentary on the question presented, without the benefit of a full disclosure of all relevant facts. Seek an in-person consultation with a licensed professional.