This week's question:
I went through a divorce case a few years ago and I just discovered that my wife had a secret account where she had been squirreling away money for years. I had an attorney and she did a great job, but I was wondering whether there is anything I can do about this secret account. In all the paperwork we had to do, it was never disclosed once. I just learned that it had about $50,000 in it that was "saved" during our marriage.
There just may be something you can do about that, Matt.
If you go back to your attorney, she may point out that there are many helpful provisions in the California Family Code to protect against fraud, perjury, and other cases of non-disclosure or misconduct.
For example, Family Code §2121 states that the provisions of the subject chapter are in addition to the basic six-month rule for mistake or excusable neglect. (Numbers in parentheses that follow correspond to the California Family Code citation.)
If you can prove actual fraud, where the defrauded party was kept in ignorance or in some other manner was fraudulently prevented from fully participating in the proceeding, you may bring an action or motion based on fraud within one year after the date on which you either discovered, or should have discovered, the fraud. (§2122(a)).
If you can prove perjury in the filing or preparation of the preliminary or final declaration of disclosure, the waiver of the final declaration of disclosure, or in the current income and expense statement of the other party, you have one year after the date on which you either discovered the perjury or should have discovered the perjury. (§2122(b)).
In the case of duress, for example, you were forced into an agreement improperly, you can file an action or motion based upon the duress within two years after the date of the entry of the judgment. (§2122(c)).
You also have two years from the entry of the judgment to file an action or a motion based on mental incapacity. (§2122(d)).
You have one year from the date of entry of the judgment to file an action or a motion as to a stipulated or uncontested judgment or that part of a judgment stipulated to by the parties if based on mistake of fact or mistake of law. (§2122(e)).
There is also a one-year deadline to file an action based on failure to comply with the disclosure requirements set out in the Family Code. The one-year rule starts to run after the date on which the complaining party either discovered or should have discovered, the failure to comply (§2122(f)).
It should be remembered that you generally cannot set aside a judgment because the court finds that it was inequitable when made, nor simply because subsequent circumstances caused the division of assets or liabilities to become inequitable, or the support to become inadequate (§2123).
A good question is whether one fraudulent provision will set aside the whole judgment or whether just that fraudulent provision will be stricken or otherwise resolved. That question is answered by §2125 that states as follows:
"When ruling on an action or motion to set aside a judgment, the court shall set aside only those provisions materially affected by the circumstances leading to the court's decision to grant relief. However, the court has discretion to set aside the entire judgment, if necessary for equitable considerations."
Another favorable section for the innocent spouse is §2124 that provides that the negligence of an attorney shall not be imputed to a client to bar an order setting aside a judgment, unless the court finds that the client knew, or should have known, of the attorney's negligence and unreasonably failed to protect himself or herself.
And it should be noted that many of the rules above apply not only to marital dissolution (divorce) cases, but also to legal separation and nullity cases.
So, you can see, Matt, that there may be some hope for you in recovering your share of that secret bank account. Along with your share that money, you may have a good case for breach of fiduciary duty and the attorney's fees you incur because of the extra work.
/s/Donald J. DeVries
Donald J. DeVries is an attorney practicing law in Almaden Valley. If you would like him to answer your question in his next Almaden Times column, you can reach him by email at email@example.com <mailto:firstname.lastname@example.org> (with "Almaden Times Article" in the subject line), fax at (408) 268-6502, telephone at (408) 268-9500, or mail at 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation.
Mr. DeVries writes this column to provide you with general information about important legal matters affecting California residents-not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.