Criminal Cases and Divorce
Jason A. Márquez, Colorado Family Law Attorney
All too often one or both parties in a divorce action have criminal backgrounds or have open criminal cases. These criminal cases can often play a significant role in divorce proceedings. They can impact the allocation of marital property and more importantly, impact the allocation of parental rights and responsibilities.
The influence criminal cases have on the allocation of marital property is more straightforward. A party to a divorce proceeding who hires a criminal defense attorney to represent them in a criminal proceeding is usually charged with the legal fees. In other words, using marital funds to pay legal fees is often considered a misuse of those funds. In such cases, the opposing party is often given credit when the court allocates the marital debts and assets. For example, a debt to a criminal defense attorney will likely be entirely allocated to the party who incurred the debt. In the alternative, that same party may forego an allocation of marital assets equal to the amount of funds spent on legal fees.
Perhaps the more complex and damaging effect of criminal cases occurs in the allocation of parental rights and responsibilities. The level of damage is generally determined by the nature of the charges, the number of cases, and the outcome of those cases.
- Nature of charges.
Parties charged with domestic violence, sex crime, drug/alcohol, assault, child-related and other similar crimes will face the most difficulty in acquiring parenting rights and responsibilities. The consequence of these charges may often lead to restricted parenting time. The restrictions may also include supervised parenting time, monitored sobriety, therapy, etc.
- Number of cases.
Generally speaking, the more cases a person has been a party to, the more problems they will have in a divorce proceeding. Multiple cases involving the same or similar charges will be additionally problematic.
- Outcome of cases.
A person charged with a crime will have less difficulty than a person convicted of a crime. However, a person acquitted of a crime will not necessarily avoid problems in their divorce proceeding. First, let’s take the case where a person is charged with a crime. Generally speaking, a party is presumed innocent until proven guilty. However, police reports, forensic reports and other investigative reports may be used in divorce proceedings to help the court make determinations with regard to parenting rights. It is important to note that the burden of proof in a criminal case is beyond a reasonable doubt. However, the burden of proof in a civil case, such as a divorce proceeding, is by a preponderance of the evidence. The civil burden is lower than criminal burden. Therefore, pending the ability of a prosecutor to meet the burden of proof in a criminal matter, the same evidence may facilitate the meeting of the burden of proof in a civil divorce matter. This same theory can be applied to the case in which a person is acquitted. The prosecutor may have failed to meet the criminal burden, however, the burden may be met with the same evidence in the civil divorce proceeding. It’s easier to see that a person convicted of a crime will have the most difficulty because the prosecutor has already met a higher burden than would otherwise be met in a civil proceeding.
When a criminal matter is open at the same time as a divorce proceeding, the person charged with a committing a crime may often have the ability to diminish the negative impact the criminal matter will have. Prosecuting attorneys will often extend offers or plea bargains to the person charged. These plea bargains should be carefully evaluated for the suspected bearing they will have on an open divorce proceeding. For example, a plea of guilty to disturbing the peace will have less impact than an original charge of assault. A charge of domestic violence is often one of the most damaging charges a person can face in the allocation of parental rights and responsibilities.
There are several circumstances in a divorce case that can pose obstacles or alternatively, help undo the damage done. Examples of obstacles include, evaluations often performed by professions such as sex, drug and/or alcohol evaluations. Endeavors that help undo the damage may include parenting classes, individual or group therapy, monitored sobriety, etc.
Whether you are the victim, defendant, or spouse of a defendant, it is important to recognize the effect criminal cases can have on divorce proceedings. An experienced attorney can explore the options and advise client on methods of approaching the effect of criminal cases.
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