Divorcing a Spouse Charged with a Crime

Huma Abedin’s new book, Both/And: A Life in Many Worlds, was recently released. One of the topics in the book is Abedin’s divorce from high profile former Congressman and former New York City mayoral candidate Anthony Weiner, who pled guilty to sexting an underage girl (the actual charge was Transferring Obscene Material to a Minor).

It is no surprise that Abedin filed for divorce hours before Weiner entered his guilty plea. Whenever a high-profile person is charged with a crime and plans to plea or expects to be convicted, a divorce is almost always a de rigueur part of the process. Georgina Chapman did the same thing. She filed for divorce from Harvey Weinstein in October 2017 when news of Weinstein’s sexual crimes was making headlines. Weinstein was formally charged in May 2018 and convicted in February 2020.

Brand Protection

One pressing reason an innocent spouse may file for divorce when their spouse is charged with a crime is to create a clear separation between themself and the alleged behavior of the spouse. It’s a way of saying, “They did it; I had no part in it and knew nothing.” By filing for divorce, the innocent spouse attempts to protect his or her own brand and good name. Divorce is a clear indication not only that they do not support the defendant spouse, but that they were not involved and condemn the actions.

Financial Protection

Filing for divorce when there is a criminal charge on the horizon also serves as financial protection in several ways:

  • All marital assets are divided before a criminal conviction. The innocent spouse gets his or her share of the marital estate before legal fees begin to drain the assets. This also protects the innocent spouse should the criminal defendant have to pay fines as part of their sentence.
  • The innocent spouse’s share of the assets is protected from civil claims brought by the defendant spouse’s victims. The assets can be divided before any civil suit can be filed.
  • For defendants charged with a financial crime (particularly a white-collar crime), the federal government may seize assets, including marital assets. Waiting to file could result in the seizure of most marital assets, leaving the innocent spouse without economic support.

Heavy-Handed Asset Agreements

If a divorcing couple has children, it may make sense for an agreement to provide the innocent spouse with a larger portion of the marital assets than they would otherwise be entitled to. If the defendant spouse becomes incarcerated, payment of child support or spousal support and access to assets would be impossible. Agreeing to a settlement that provides the innocent spouse with a larger share can provide long-term financial protection for the innocent spouse and the children. Note that settlements must be approved by the court and, therefore, cannot be completely inequitable.

Reasons to Wait to File

Although there are many good arguments to file for divorce as soon as it becomes apparent the defendant spouse will be charged with a crime, there are reasons to wait until there is a conviction.

If the couple cannot come to an agreement about the divorce, waiting to file until there is a conviction ensures a slam dunk case for child custody and asset division. While a spouse who is not yet charged or only charged but not yet convicted may insist on the presumption of innocence while criminal charges are pending, after conviction that argument is lost. Any incarceration impacts child custody; however, conviction of a sex crime or violent crime could lead to a termination of parental rights entirely.

If both spouses are convinced of the defendant’s innocence, waiting to file may make sense. They can present a united front in public, which may help the defendant’s case. If no conviction is obtained, they can remain married without the expense and upheaval of a divorce.

Other Tips to Keep in Mind for Innocent Spouses

Innocent spouses should also keep the following in mind:

  • Get their own attorney. If there is an issue that implicates the innocent spouse, he or she must have their own criminal and divorce attorney.
  • Say nothing. The innocent spouse should talk to no one about the case or potential case. It is possible that law enforcement has bugged phones or locations.
  • Do not speak to law enforcement. If a member of law enforcement wishes to speak to an innocent spouse, either politely decline or insist on having an attorney present.
  • File separate taxes. The innocent spouse should file taxes separately (“married filing separately” if not yet divorced). If there is any question about tax fraud, the innocent spouse could be charged if taxes are filed jointly.
  • Plan for the event. If there is a chance the defendant spouse will be charged, or if there is press about the defendant spouse, the innocent spouse should consider hiring a PR team to help manage his or her own image.

A criminal charge or conviction can be personally devastating, but the innocent spouse can take steps to ensure financial and personal protection when armed with good legal advice.


Dror Bikel

Dror Bikel co-founded Bikel Rosenthal & Schanfield, New York’s best known firm for high-conflict matrimonial disputes. A New York Superlawyer℠ and twice recognized (2020 and 2021) New York Divorce Trial Lawyer of the Year, Dror’s reputation as a fearsome advocate in difficult custody and divorce disputes has led him to deliver solid outcomes in some of New York’s most complex family law trials. Attorney Bikel is a frequent commentator on high profile divorces for national and international media outlets. His book The 1% Divorce - When Titans Clash was a 5-category Amazon bestseller.

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