White-Collar Criminal Defense Attorneys and the Innocent Spouse
Because most white-collar cases result in plea deals, the white-collar criminal defense attorney has one job, and that is to obtain the shortest sentence possible for their client who has pled guilty. When presenting their client for sentencing, attorneys prefer that their client’s non-offending spouse and children stand by their client as they believe this will play well before a judge. While it’s nice to have family support for the white-collar perp, sentences are based on recommended guidelines for the crime, the dollar amount, who was affected by the crime, prior offenses, whether or not a perp cooperated, and the level of remorse the perp has for committing the crime. Note here that most judges can easily see the difference between regretful posturing and real remorse. Lest there be any doubt, at the end of the day, perps do not get lesser sentences because they have a family standing by them.
The White-Collar Wives Project has mentored over two hundred white-collar families and not once did a judge consider familial ties in their sentencing decisions. We have seen cases where there are disabled children involved and how the burden of having one parent incarcerated would severely affect the level of care for those children. We have seen many cases where the extreme financial hardships of having one spouse incarcerated is ruinous for the family financially, yet this is not a consideration for judges. When it comes to sentencing, do the crime, do the time.
White-collar criminal defense attorneys are right to try to do what is best for their client because that is what they are paid to do. But most white-collar criminal defense attorneys have no knowledge of the sacrifices innocent spouses make to stand by their criminal spouse. Marriage is a legally binding contract that creates joint ownership of assets and debts. When a financial crime is committed, restitution plus penalties are attributed to the perp and any ill gotten gains must be returned or repaid. This is where things get messy. If the ill-gotten gains have been comingled into the marital estate, then marital assets are at risk of being seized by the government to go toward a perp’s debt. But in many cases, the ill-gotten gains are not comingled within the marital estate, but nonetheless, the entirety of the marital estate is seized for restitution and penalties. Legally, the government can only seize assets that are owned by the perp. In other words, half of the marital estate, and the non-offending spouse retains their legally owned share of untainted marital assets. But in too many jurisdictions the entirety of the marital estate is seized and the non-offending spouse is suddenly deemed as a third party to their legally owned portion of untainted assets! The innocent spouse has committed no crime, had no knowledge of a crime, and is not under indictment. To make matters worse, it is next to impossible for a non-offending spouse to regain their legal portion of the marital estate once the government has seized them because many jurisdictions deny the innocent spouse “standing” in laying claim to THEIR LEGALLY OWNED ASSETS. This is what brings so many innocent spouses to The White-Collar Wives Project.
Another overlooked risk to the non-offending spouse are the tax debts the innocent spouse incurs on ill-gotten income because those funds are taxed as income. The unsuspecting non-offending spouse who files taxes jointly with a white-collar perp are liable for those taxes despite having no knowledge that the income was illegal, and in most cases, no knowledge of the income at all because perps usually do not claim their ill gotten funds on tax returns. Perps usually explain windfalls in any number of ways that do not raise red flags to their spouse, and most innocent spouses have implicit trust that their tax returns are legitimately prepared by their spouse, or by a professional who has been supplied income information from the perp, and simply sign them. Blind trust and taxes is a subject for another blog on another day. To add insult to injury, tax entities will not even consider Innocent Spouse Relief unless the non-offending spouse has divorced their offending spouse.
Fortunately, there are some white-collar criminal defense attorneys who agree with the White-Collar Wives Project’s stance on the need for innocent spouses to protect themselves by stepping away from their offending spouse as early as possible. These attorneys understand the risks non-offending spouses take when they stand by their perp spouse. If you are a white-collar criminal defense attorney, please understand that your obligation to your client should not be at the peril of family members who have already suffered an egregious famiial betrayal of epic proportions.
For more information on protecting the innocent spouse and this “new area of the law”, please contact Lisa Lawler at lawlerlisa1@gmail.com.
