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The Matrimonial StrategistFeaturesFamily LawLJN Newsletters

A Broadening Consensus to Narrow Asset Forfeiture

By Edmund W. Searby

Editor's note: When Attorney General Jeff Sessions announced in July that the federal government planned to again emphasize the pursuit of civil asset forfeitures, it raised issues for many, including the spouses and family members of those who are charged with committing federal crimes. Why? Because if the federal (or state) government decides to pursue a criminal case against someone, it can often seize the alleged culprit's property, even before conviction. For example, the federal government is authorized under 21 U.S.C. § 881(a)(7) to seize assets used to violate the federal Controlled Substances Act, including real estate.

When someone discovers that a spouse has been taking part in criminal activities, divorce proceedings may follow, and an innocent spouse can argue that they were not aware of the activities, so jointly owned property should not be forfeited. However, what would be treated as marital property may not actually be jointly owned: Witness the case of United States v. 148 Maunalanikai Place, 2008 U.S. Dist. LEXIS 60057 (D. Haw. 2008), in which a wife was charged with using her home to further a drug and money-laundering operation and the government seized it. There, the court agreed with the federal government that the husband divorcing this woman lacked standing to protest the government's seizure of real property owned in his wife's name because Hawaiian law defines the marital estate as that property owned by either party on the date of the conclusion of the evidentiary part of the trial. See Malek v. Malek, 7 Haw. App. 377 (1989). As the property seizure took place prior to the close of evidence in the divorce matter, the husband had no cognizable claim at all to the forfeited property.

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