It is not uncommon in San Diego divorce cases for spouses to accuse each other of improperly hiding or failing to disclose community assets. However, before pursuing any legal course of action for relief in court, it is advisable to collect substantial evidence of misconduct. Often times what seems like wrongdoing at first can simply be explained by clarification of a misunderstanding or the production of supplemental information. In the instance where a spouse is failing to disclose property or making substantial efforts to conceal assets, it may be necessary to seek court intervention. One common thread to accusations of concealment of property is the involvement of a third party.
Obtaining relief from a third party is much more difficult in the family law arena than it is in general civil litigation. In a general civil case or criminal prosecution, any party involved in a conspiracy can be joined in the action and held directly accountable for their involvement. Family law judges hear much more personal types of cases and therefore are hesitant to drag third parties or businesses into divorce or custody disputes.
There are two categories of joinder, mandatory joinder and permissive joinder. Mandatory joinder is used in a limited set of circumstances which are largely procedural. Permissive joinder is a much more arguable area of these laws because the exercise of the court’s discretion in making a decision regarding permissive joinder is the “reasonableness” standard. Whether joinder is considered “reasonable” is highly fact driven and the “reasonableness” of joinder may vary greatly from judge to judge. With such broad discretion and open-ended guidelines, it is impossible to predict with any certainty the outcome of a motion for joinder.
A request to join a third party you believe has been conspiring with your spouse to hide property is within the court’s broad permissive joinder criteria. Pursuant to California case law, the court may order joinder of a third party to which one spouse purportedly made an unauthorized gift of community property. For example, if you have evidence to suggest that your spouse is “selling” off community assets to a friend for little to no consideration, you may be able to join the third party who has “bought” community property. Many times, the friend will be holding the property for the spouse until the divorce has concluded and then will return the property to the spouse. These types of cases are difficult to prosecute without substantial evidence of misconduct. However, if you can prove your spouse gifted community property to a third party you may be able to join the third party in your divorce action.
Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child custody and visitation. Nancy J. Bickford is the only attorney in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.