When Your Spouse’s Baggage Includes a Debt to Society
When you get married, you take your spouse for better or for worse, but does the worse include being on the hook for your spouse’s criminal restitution? That is to say, if your partner has been convicted of a crime, and part of their sentence includes paying money to a victim or to the State of Colorado, can their failure to pony up lead authorities to look to you for payment?
In a criminal case in Colorado, who is liable for criminal restitution is a question that comes up more often than you might think. Most people bring at least a little baggage into their marriage, whether it be literal, emotional, or financial. And after a couple ties the knot, one spouse may make poor decisions that create issues for the other.
Such is the case with criminal restitution. If you are the innocent spouse of someone with a criminal record, what you need to worry about and if you need to worry at all depends on several factors, such as when the court imposed the obligation and the way in which a couple holds certain assets.
What is Criminal Restitution in Colorado?
While people sometimes speak of “victimless crimes,” most criminal offenses involve some harm to another person or entity. This harm could be physical, such as the pain and suffering for victims of assault or another violent crime. Or, the harm could be strictly financial, as in cases of theft, fraud, or embezzlement.
In Colorado, many of the punishments imposed as part of a criminal sentence - such as prison time, probation, loss of certain rights, or fines paid to the state – focus on punishing the perpetrator in an effort to deter them from committing another crime in the future.
Criminal restitution, on the other hand, focuses on compensating victims for losses caused by the crime and the person convicted. Restitution is an order by the court that requires the convicted individual to pay money to the victim either in a lump sum or as payments made over a specified time period.
Colorado Law mandates the imposition of criminal restitution in most crimes involving a victim suffering a pecuniary (financial) loss. This means that unless the sentencing court specifically finds that the crime caused no financial loss to any victim of the offense, the court is obligated to order a defendant to pay financial restitution. For purposes of imposing criminal restitution, “conviction” means a verdict of guilty, a plea of guilty or nolo contendere, or receipt of a deferred judgment and sentence in all cases involving a felony, misdemeanor, or even a misdemeanor traffic offense.
You might like: What Does Spousal Privilege Mean in Colorado?
How Does The Court Decide The Amount of Restitution And When Is Payment Due?
El Paso and Teller County courts will base the restitution amount on the information presented to the court by the prosecutor, who presents victim impact statements and other evidence of the victim’s losses. Restitution is due and payable at the time that the judge enters the order. If, as is often the case, the defendant cannot pay the full amount of restitution at that time, a “Collections Investigator” will establish a payment schedule to monitor and collect the money owed.
What Happens When A Defendant Fails To Pay Required Restitution?
Even though criminal restitution ultimately makes its way to a victim’s pockets, the money is actually owed to the State of Colorado. This means that the State of Colorado will come after the defendant if they fail to make payments as required. Like any debt collector, the Collections Investigator appointed by the State of Colorado will aggressively pursue the amounts owed, using many of the same methods that private creditors use to collect debts.
These collection efforts can include the use of lawyers and collection agencies, whose fees get added to the total amount of restitution due. The court may also garnish up to 50 percent of the defendant’s earnings and apply those sums to past-due restitution.
How An Innocent Spouse Can Be On The Hook For Their Spouse’s Criminal Restitution
If your spouse was convicted of a crime and ordered to pay criminal restitution prior to your marriage, Collection Investigators cannot and will not come after an innocent spouse to satisfy their spouse’s criminal restitution debt. However, after you say “I do,” the debts you or your spouse acquire become marital debts that a judge will divide “equitably” between the parties in the event of divorce. The good news is that in Colorado, “equitable” does not mean “equal.” It means “fairly.” In the case of criminal restitution, a judge is likely to put such debt in the defendant’s column.
But that does not mean that collectors can’t or won’t come after an innocent spouse’s property if they share ownership of that property with the defendant.
Under Colorado Law, the entry of an order for restitution creates a lien by operation of law against the perpetrator’s personal property and any interest that the perpetrator may have in any personal property. If a home, car, or other property is held jointly between the spouses, Collection Investigators could seek to foreclose on the perpetrator’s interest in the property and create a lot of headaches for the innocent spouse. That being said, while such property may be at risk, the innocent spouse will not be otherwise liable for outstanding criminal restitution.
Questions About Criminal Restitution and Marriage or Divorce? Call Colorado Springs Criminal And Family Law Attorneys At Perkins Law Today.
If you have questions or concerns about how your spouse’s criminal restitution and how it may impact you or your marriage, please contact Perkins Law today. As both a criminal and a family law firm, we have the expertise to navigate these complicated waters. And with our free initial consultation, you have nothing to lose, and peace of mind to gain.