Fiduciary Duty & Aiding and Abetting
Did you know that each of the parties in a divorce proceeding in Colorado owe a fiduciary duty to each other? That means that they owe a special duty and responsibility to each other to be open, complete and timely in the disclosure of all financial information and the financial condition of each other, including anything that might adversely affect any of the assets such as ill health, debts or lawsuits.
This special responsibility is very similar to the responsibility that a bank might owe a bank customer to care for that bank customer’s money and other assets.
The financial disclosure could include, but is not limited to, all retirement funds and statements that the other spouse may not be receiving, and also health conditions that may cause one party to sustain significant debts or has sustained significant debts.
Information must also be shared if either party or a dependent, such as a minor child, is involved in a lawsuit or an award might be available.
Also, all business interests, the nature of the business and interests, and all documents relating to the business(es) must be shared.
There could be other financial interests or other information that falls under this fiduciary duty. If one spouse’s attorney knows of this information and withholds the information and/or participates in the hiding or refusal to disclose the information as per the Court rules and/or is intentionally untimely to give his/her client the upper hand, and that attorney may be responsible under the concept of aiding and abetting. This is not unlike aiding and abetting a party committing a criminal offense, but is civil or can even be criminal. An aider and abetter under criminal law could be just as responsible as the perpetrator of the criminal act.
A breach of fiduciary duty and the aiding and abetting of the breach of fiduciary duty can result in sanctions against the spouse and/or the spouse’s attorney who are breaching the fiduciary duty by withholding information. Some of these sanctions could be monetary to be paid by the violating spouse and/or the attorney, contempt of court, etc. This list is not exhaustive. It could result in the right to file a separate lawsuit ag