Hello, sewey-ga!
Since I have not heard from you and I need to move forward, I am
posting the most relevant information I have been able to find
pertaining to your questions. I am assuming you are seeking some
background information so that you can be armed with a bit of
knowledge if you consult an attorney. Obviously, the GA service is no
substitution for legal advice, as noted in the disclaimer at the
bottom of this page. A California attorney will be best able to
provide you with the most recent and relevant legal information
regarding a potential action going forward. Therefore, the information
I have found should be considered a preliminary step, only.
The following references pertain to your situation, and may have some
bearing if you decide to pursue legal action. One of the major
problems, however, will be the time period that has elapsed. This is a
matter you will have to discuss with a legal advisor. See the
California Family code and the section I have marked with ** under
"Relief from Judgement."
======================
CALIFORNIA FAMILY CODE - Dissolution of Marriage
======================
DISCLOSURE OF ASSETS AND LIABILITIES -
-------------------------------------
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=fam&group=02001-03000&file=2100-2113
RELIEF FROM JUDGEMENT - *** Read Entire section
---------------------
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=fam&group=02001-03000&file=2120-2129
2122. The grounds and time limits for a motion to set aside a
judgment, or any part or parts thereof, are governed by this section
and shall be one of the following:
(a) Actual fraud where the defrauded party was kept in ignorance or
in some other manner was fraudulently prevented from fully
participating in the proceeding.
** An action or motion based on fraud shall be brought within one
year after the date on which the complaining party either did
discover, or should have discovered, the fraud.
Family Code Table of Contents
http://www.leginfo.ca.gov/cgi-bin/calawquery?codesection=fam&codebody=&hits=
=====================
GENERAL INFORMATION
=====================
Disclosure and Discovery
-------------------------
The following article includes quite a bit of information about
disclosure and discovery of assets:
"RELIEF FROM JUDGMENT DUE TO FRAUD." Divorce Source
http://www.divorcesource.com/research/edj/fraud/94apr37.shtml
==
Settlements signed under threat or duress
-------------------------------------------
See the following section and case law examples:
FRAUD AND DURESS - RELIEF FROM DIVORCE JUDGMENT.
http://www.divorcesource.com/research/edj/fraud/95jul73.shtml
See Section II. Duress
========================
APPLICATION OF CASE LAW
========================
A brief overview of case law involving divorce and fraud can be found
on the California Divorce Blog.
From "Case Law Development: Fraud and Duress as Grounds for Avoiding
Property Settlements." November 17, 2005.
http://californiadivorce.blogs.com/blog/2005/11/case_law_develo.html
"In a number of recent cases, several state appellate courts have been
asked to determine whether there existed grounds for fraud or duress
sufficient to void a property judgment based on a settlement
agreement. Unless brought soon after the judgment, courts generally
treat these actions as equitable actions to void a contract, rather
than actions to reopen a judgment. The cases demonstrate just how
difficult it is to provide sufficient proof of fraud or duress to
avoid a settlement agreement."
"The California Court of Appeals found a sufficient basis for avoiding
a marital settlement agreement (MSA) that had been incorporated into a
default judgment of divorce. In this case, Husband used a document
preparation service to prepare their property agreement. Wife relied
on Husband?s representations that she could get no spousal support
from him and signed the MSA. Wife later learned of her rights and sued
to set aside the MSA and the default divorce judgment incorporating
its terms. The court of appeals held that the trial court did not err
in setting aside the MSA. Husband had failed to comply with mandatory
disclosure obligations regarding value of community property, to
wife?s detriment, and had affirmatively misled her regarding her legal
rights to support. The court found that "The mistake as to spousal
support prejudiced wife. Husband's gross monthly income was $ 10,000,
more than seven times wife's gross monthly income of $ 1,400. Because
of wife's mistake, she waived her right to receive spousal support."
Read the opinion:
Read "In re Marriage of DARRELL J. and LAURA MARIE MANGINELLI. 2d
Civil No. B177338 (Super. Ct. No. D299796) (Ventura County) Filed
10/19/05
http://www.courtinfo.ca.gov/opinions/nonpub/B177338.PDF
==
Although an earlier case (from 1994) ruled that "extrinsic fraud" was
not a factor in misrepresentation of pension benefits - the former
wife did end up gaining more assets.
From "Relief from Judgment - Distribution of Pension."
http://www.divorcesource.com/research/edj/fraud/95feb21.shtml
Extrinsic Fraud. In a recent California case, a wife who had been
misled about the value of her husband's pension benefits failed to win
modification of the judgment. In re Marriage of Melton , 28 Cal. App.
4th 931, 33 Cal. Rptr. 2d 761 (1994). In the parties' dissolution
proceedings, the administrator of the husband's professional baseball
pension plan provided incorrect information about the husband's
projected benefits. Based on this information, the wife agreed to
accept a specified amount as her one-half share of the monthly
retirement payments, and the stipulated judgment reflected that
agreement. When the husband retired and the wife found out that his
payments were actually much larger than expected, she sought relief
from the judgment."
*** The trial court found no extrinsic fraud but, relying on its
inherent equitable powers, it awarded the wife one-half of the
husband's benefits.
"The California appeals court held that the husband's conduct, while
it may have been "sharp practice," did not involve extrinsic fraud so
as to warrant relief from judgment. A party's representation of the
value of an asset, favorable to himself, does not constitute extrinsic
fraud, the court said. Although the husband did misrepresent the
projected value of his future pension benefits, with the assistance of
the plan administrator, the wife's attorney had a copy of the pension
plan and could have discovered, in the exercise of reasonable
diligence, that the plan was amended by increasing benefits from time
to time. Furthermore, her counsel could have conducted discovery on
the plan to find out what the husband's projected benefits would be."
** "The court went on to hold, however, that the wife was entitled to
a division of the value of the pension above what had already been
divided."
==
The following case might also have some relevance:
Read "Dale v. Dale - COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE, STATE OF CALIFORNIA
http://fl.bna.com/fl/19981006/24756.htm
Excerpt:
"In this action, Joanne Sandra Dale ("Joanne") alleged that during the
course of a marital dissolution proceeding her former husband,
defendant Thomas Redding Dale ("Thomas"), and the bookkeeper for his
medical practice, defendant Chun Wei Dale ("Chun Wei"), concealed from
Joanne certain community assets related to the practice. Joanne
claimed that as a result of the concealment, she was induced to forego
spousal support and to stipulate that Thomas be awarded the practice
without full knowledge of the assets contained therein. Joanne sought
compensatory and punitive damages under a variety of tort theories.
The trial court dismissed the action for lack of jurisdiction,
concluding Joanne's exclusive remedy lay in seeking to set aside the
judgment of dissolution in the family court. We hold that in the
absence of a pending dissolution proceeding, a plaintiff who contends
she suffered injury because her former spouse tortiously concealed
community assets from her, thereby preventing her from fully
presenting her case in the dissolution proceeding, is entitled to
bring a subsequent tort action based on the alleged concealment.
Accordingly, we reverse the order of dismissal."
==
Read about tort actions brought in regard to "fraud in procuring a
settlement agreement" in the following article:
"Civil Conspiracy and Civil RICO in Divorce Actions," by Laura W.
Morgan. Family Law Reader. May 2002.
http://www.famlawconsult.com/archive/reader200205.html
==
The following case also involves asset fraud:
GRIMMETT v BROWN. U.S. 9th Circuit Court of Appeals
http://caselaw.lp.findlaw.com/scripts/printer_friendly.pl?page=9th/9416137.html
"In May 1989, Joanne and Vincent's bankruptcy trustee, Tom Grimmett,
filed an adversary complaint in bankruptcy court alleging that
Vincent, Dr. Bowers, Dr. Hareen, and HIN's attorney, Patricia Brown,
had conspired to cheat Joanne out of her share in Vincent's interest
in the practices. Vincent had claimed that he was forced to sell his
interest in the medical practices at a loss and become a mere employee
when the practices were reorganized into the Cardiology Associates of
Nevada ("CAN"). Joanne alleged that because of secret side agreements,
Vincent continued to make as much money as he did before; to her, the
reorganization amounted to a "common plan to defraud [her] out of her
rights under the Divorce Instruments." The alleged scheme also
involved the use of backdated documents and false representations to
the bankruptcy court.
==
The following excerpt is from a very lengthy article about discovering assets:
From "Discovery and Treatment of Hidden Assets in Divorce Cases," by
Allan H. Zerman and Cary J. Mogerman, Zerman & Mogerman, L.L.C. St.
Louis, Missouri
http://www.zermanmogerman.com/articles/Discovery%20of%20Hidden%20Assets%20in%20Divorce.pdf
"Some courts condition the available relief upon a consideration of
different factors, such as whether there was a restraining order in
effect or not, what the funds were used for, and the like. In a recent
Michigan case, Sands v. Sands,xxxi the appellate court affirmed the
trial court's disposition of certain assets, with one exception:
"The case before us is a prime example of the burden one spouse's reprehensible
behavior can impose upon not only the wronged spouse but also the court system.
Under the circumstances revealed by the extensive record presented to
us, we find it an abuse of discretion for the trial court not to have
taken some sort of punitive action in light of Mr. Sands' persistent
attempts to conceal assets...[t]hus, we find it inappropriate for the
court to award Mr. Sands any share of assets that he attempted to
conceal. Once a spouse intentionally has misled the court or the
opposing spouse regarding the existence of an asset, that spouse
should be estopped from receiving any part of that
property...Accordingly, we remand...We direct the court to award full
ownership of these particular assets or their equivalent value to Mrs.
Sands before making an equal split of the remaining assets. This
course of action should have the salutary effect not only of adjusting
the equities in this case but also of serving as a warning to all
divorcing parties."
"The Sands court followed the recommendations of the Michigan Supreme
Court Task Force on Gender Issues in the Courts, which stated "[i]f
undisclosed assets are later discovered, there should be a rebuttable
presumption that they were deliberately concealed, resulting in the
award of 100% of such assets to the injured party unless the
presumption is overcome by the non-disclosing party."
IV. Conclusion
"Where all else fails, and one spouse successfully conceals the
existence of an asset from another, the court may set the decree aside
on the basis of fraud for the failure to disclose the asset.
*** Some states, however, have time limitations within which
post-judgment relief may be obtained.
If the existence of the concealed asset is discovered after the
divorce, counsel should immediately seek to set aside the judgment and
obtain whatever other relief may be available in equity. It is also
suggested that the Separation Agreement specifically provide that each
party actively represent that he or she has made full disclosure of
all property in which either has an
interest, and that each party should acknowledge that the other party
has relied upon this disclosure in reaching the agreement. Such
language helps to establish the fraudulent misrepresentation necessary
to set aside the decree in a subsequent action. Finally, counsel
should attempt to create realistic expectations in the client as to
the ability to discover assets which have been actively concealed. The
client should be advised of every step counsel has taken to attempt to
discover any suspected concealment, and that despite the best efforts,
it is sometimes impossible to locate assets which have been hidden. An
educable client is generally a satisfied client."
==
For additional interpretation of this matter, see the reasoning for
the opinion in the following case:
"MARY MATTSON v. JEFFREY C. MATTSON (AC 22082)"
Submitted on briefs October 31- officially released December 24, 2002
(Appeal from Superior Court, judicial district of Danbury, Frankel, J.)
http://www.jud.state.ct.us/external/supapp/Cases/AROap/AP74/74ap82.pdf
==
I hope I have provided you with some helpful information. I wish you
the best of luck as you make some choices moving foward.
Sincerely,
umiat
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