by Honorable Anne Kass. Ann Kass is a District Judge in the Second Judicial District State of New Mexico
When I was practicing law, a client once came to me to handle his divorce. An our first meeting he told me about all the property and debts, including some bank accounts. Near the end of the meeting he said, "My wife doesn't know about these two certain bank accounts, and I don't want her to find out about them either."
I told him that he was asking for trouble. I predicted that at some point he would be asked by the other lawyer whether there were any other assets. I said he may be asked that question under oath. If he said "no," he would be lying. If he said "no" under oath, he would be committing perjury, which is a felony. I told him the lawyers' code of ethics forbids a lawyer from participating in a client's lie.
He said he reckoned he could find an attorney who viewed things differently. I told him I thought he could too, but I cautioned him that an attorney who will lie for you will also lie to you, because lying gets to be a habit. I pointed out that his wife could only get half of what they owned, but a dishonest attorney could readily end up getting it all.
He left that day, and I never heard from him again.
People involved in law suits sometimes have the attitude that in a law suit there are no holds barred. The reason some folks hire a lawyer is to help them get something they know they're not entitled to. In fact, the job of a lawyer is to help the client get a fair share, not a lion's share.
The New Mexico Supreme Court and Court of Appeals in 1990 each issued opinions that reaffirmed the principle that married people and divorced people have a legal duty to deal fairly with one another. It's called a "fiduciary duty."
In one case the Supreme Court said that if one spouse gives community property away to the injury of the other spouse, the fiduciary duty is violated, and the gift can be undone. In the other case the Court of Appeals said if a divorce decree gives one spouse an interest in a future fund of money over which only the other spouse has control, the spouse with control has the duty to notify when the money becomes available and to divide it as the divorce decree directs. If the controlling spouse doesn't deal fairly, he or she alone will suffer the costs and consequences.
In New Mexico if one spouse takes advantage of the other, even when they are involved in divorce, he or she is very likely to end up the victim of his/her own sneaky cleverness. The proverb that honesty is the best policy holds true, even in divorce--especially in divorce.