TO CATCH A THIEF
By: Michael H. Gora
Q My wife has always worked for her father’s restaurant in one capacity or another. She started in the kitchen as a helper when she was in high school, later waitressed, later she took care of the front of the restaurant. For the last several years, she managed the restaurant, after her father retired.
The restaurant has always been very popular and profitable. My father in law has paid my wife a generous salary for her work, but no part of the profits. She has two brothers and a sister. No others work in the family business. No promises have been made regarding what would happen to the restaurant after the death of the parents who, while in their late sixties, are robustly enjoying their lives, big house, boat, vacations ETC.
My career has gone quite will. I am the “president” of the region of a large international business and make very good money. We are now getting a divorce after a twenty-year marriage. It’s been a dogfight of a divorce. She is after permanent alimony.
To my surprise, my attorney and forensic accountant have found proof that my wife has been stealing from her parent’s business. For the past couple of years it has been to the tune of $250,000 a year on top of her $75,000 a year salary. She has stashed about $3,000,000 in a bank account in another state.
My lawyer tells me that her ill-gotten income cannot be considered by the judge in determining alimony, and that bringing this mess to the court’s attention might require the judge to turn the matter over to the police. He also tells me that the $3,000,000 that she has “saved” may have to go back to her parents, and not divided between us. What do you think about all this?
A One of the first things you learn in law school is that you cannot get good title from a thief. Buy a stolen car, for instance, and although you had no idea it was stolen you do not own it, same with money.
The only advice your lawyer can or should give you, under the circumstances, is to try to settle the case with your wife, but do not allow the stolen money to be part of the distribution of assets. You will have to be careful not to use the threat of prosecution to blackmail her into an otherwise unfair agreement, because that would be a felony, and the agreement could be set aside in the future.
In deciding the alimony question, the Judge cannot base your wife’s income on what she has been stealing from her parents, even though it has been regular and long standing. Nor can the judge impute income to her on that basis, since it far exceeded what a person with her experience could lawfully earn.
Her need to keep her misconduct secret from her parents may place her in a position to make a good deal with you on the marital settlement, but try to make sure that it is her idea and not yours. You are certainly allowed to have your lawyers cross examine her during a deposition, so that she knows that you are aware of her misconduct.
Be careful to have your divorce and family attorney, and perhaps your criminal defense attorney, investigate your duties to the police authorities and IRS under these circumstances and act accordingly, so that you do not become an accessory after the fact to crimes. If you need criminal defense services, now would be a good time to look for the best criminal defense lawyer you can hire just to make sure you keep yourself out of harms way.
Michael H. Gora has been certified by the Board of Specialization of The Florida Bar as a specialist in family and matrimonial law, and is a partner with Shapiro Blasi Wasserman & Gora P.A. in Boca Raton. Mr. Gora may be reached by e-mail at mhgora@sbwlawfirm.com.
