Preparing for Separation and Divorce

1970s recording artist Neil Sedaka said it best.  “Breaking up is hard to do.”  And it may have recently gotten harder and more problematic.

For years, conventional wisdom dictated that when parties were considering divorce, and planning their physical separation from each other, the party who moved first would be “entitled” to take half of the household furnishings, half of the bank accounts, and otherwise relocate without notice or agreement of the other party.

Such actions would rarely raise an eyebrow with our courts, and many divorce lawyers have for years been counseling clients to do exactly that when separating.

That may have changed on November 7, when the New Hampshire Supreme Court decided the case of State of NH vs. Karen Gagne.  In that case, a woman had befriended an elderly lady and was assisting her with various personal care issues.  The defendant convinced the elderly lady to put her name on her joint checking account, and then began to help herself to the proceeds by paying personal expenses, personal debt, etc.

When the victim discovered this activity, she reported it to the police as a theft.  While the victim admitted that she had allowed the defendant have access to her account to assist her with paying her major bills, she denied ever giving her any authority to use the account as her own.  The defendant maintained that because she was a joint account holder, she could not be convicted of theft from joint property.

Our Supreme Court rejected that defense, and ruled that the definition of “property of another” upon which our theft by unauthorized taking statute relies, included property in which another party had an interest including joint bank accounts.  In support of its decision, the court observed that for years partners have been held liable for misappropriation of partnership funds from “joint” partnership accounts, and that the Model Penal Code, upon which the New Hampshire criminal code is based, had long defined property of another in this fashion.

The Supreme Court did not create any further exceptions for jointly held property, nor did it indicate that marital property (a legal fiction that defines all property acquired during the course of the marriage, irrespective of title as being marital property in which both parties had an interest) was not excepted from that ruling.

Although this ruling arose in the context of a criminal case, I believe it has application to any situation in which a party exercises unauthorized (that is not agreed upon or not permitted) control over the property of another.  My opinion, having practiced divorce law and criminal law for over 27 years, is that this ruling squarely applies to marital/divorce cases as well.

Like any new court ruling, it will take months or years for this to be fully defined and fleshed out.  However, since the court has clearly ruled that property of another includes the property in which the actor has an interest, divorcing couples need to be very careful when separating and applying this previous conventional “wisdom” to their situations.

Hopefully, prosecutors, who are entrusted with discretion in bringing criminal charges, will not overuse this ruling in most marital cases.  However, I can see it causing some divorce litigants, and their attorneys, a great deal of surprise, embarrassment, and potential exposure to arrest in certain fact situations.

For example, when a spouse separates and takes an entire joint account, most if not all of the furniture and furnishings, and leaves the other party with no means to pay routine bills, mortgages, etc., I could see criminal charges being brought in that scenario.

In other circumstances, where a spouse is fleeing an emotionally or physically abusive environment, I doubt very much whether charges would be brought if the departing spouse was conservative in what was taken when they departed.

Other situations in which criminal liability may occur when a spouse, after having physically separated from their husband/wife, establishes an independent residence and then months or weeks later returns to the former marital residence and helps themselves to a variety of other additional household furnishings and personal property.

I could also see criminal charges being brought when a spouse who controls party’s finances, planning for a potential divorce, diverts individual or joint funds to pay off personal debts such as their car payment, a debt to a parent, or individual credit cards, and then later departs and files for divorce.

Many court rulings have long term unforeseen consequences, and I believe this is one of them.  As with any unanticipated court decision, the New Hampshire legislature remains free to amend the statute to exclude marital property from the definition of property of another.  However, that process takes months if not years, and in the interim, I recommend that parties contemplating separating from their spouse seek the advice of counsel, and carefully and deliberately plan their exit strategy, so they may avoid becoming an unanticipated test case in light of this new ruling.

Still another reason to consult with seasoned and experienced counsel prior to making any move that could compromise your interests.


F. Michael Keefe is the managing attorney practicing at Keefe Law Offices PLLC in Manchester, NH.  He can be reached at 603-647-4707 or learn more at keefelaw-nh.com.