Is spousal immunity affected if one spouse dies? Disclaimer: I'm a writer trying to figure something out for a story I'm working on, so forgive me if I sound totally insane. Okay. Spousal privilege/immunity. Protects someone from having to testify against their spouse. What if, for one reason or another, the spouse being prosecuted dies before or during the trial? Could the other spouse then be compelled to testify against them, or would the immunity still stand? Further, would anything change if the spouse who died committed suicide, as opposed to an accident or some sort? I've tried to do a little research (for example, this site) but am unsure if the information applies to the situation I'm dealing with. For example, that link mentions widows not being able to claim immunity because their 'marriage ended in death.' In my case, the death would have happened just a day (or maybe even mere hours) before the trial. I suppose a more specific question would be: how would such a short-notice death affect the surviving spouse's immunity?
Privilege May Be Irrelevant In Your Case In a criminal case in the U.S., a criminal prosecution is moot and dismissed if the criminal defendant dies (or even if the criminal defendant is convicted and the case is still on appeal). (Pending divorce cases also abate upon the death of a spouse, but most other civil cases do not.) Caveat: Your Mileage May Vary Privilege law is established on a state by state basis and at the federal level based upon federal law, so it can vary. Confidential Communications v. The Testimonial Privilege There are really two privileges. The privilege for confidential communications between a husband and wife survives the marriage (although it does not impose a duty on a spouse not to disclose confidential communications outside court testimony) and may be asserted by either party to the communication. The testimonial privilege allows someone facing criminal charges or a civil claim in court to prevent a current spouse from testifying against them whether or not the current spouse wishes to testify. Exceptons To Spousal Privilege Both privileges generally exclude criminal and civil claims between the spouses and sometimes certain other crimes, and often also ongoing crimes and an intent to commit a future crime. In Colorado, the privilege extends to crimes allegedly committed against children, however, although this would not be true in all states. The detailed example of the Colorado statute on this point is set forth below. The 5th Amendment Alternative To The Testimonial Privilege Note that even when the testimonial privilege does not apply because a marriage has ended due to death, divorce or annulment, the former spouse may still be able to claim a 5th Amendment privilege out of concerns about prosecution, for example, for aiding and abetting, conspiracy, or accessory liability, if the witness is not given immunity (which is usually available only in criminal cases, not in civil cases brought by a private party who does not have authority to grant immunity). Spousal Immunity Contrasted With Spousal Privilege Spousal immunity is a very different concept from spousal privilege. Historically, you were immune from criminal liability for most crimes committed against your spouse (except murder), and had immunity from civil liability from all civil lawsuits brought by or on behalf of a spouse against the other spouse (e.g. breach of contract, personal injury, property disputes), except a suit for dissolution or annulment of a marriage or legal separation. If you have immunity from criminal or civil liability, testimony is irrelevant. You can't be found guilty period. The criminal liability immunities were lifted for all crimes other than rape long ago, and relatively recently for marital non-consent rape (there is still generally immunity from statutory rape or person in position of trust rape committed during the marriage). The civil liabilities were mostly eliminated many decades ago. The Example Of Colorado's Spousal Privilege Statute In Colorado, the spousal privilege statute reads as follows (later parts of the statute apply to other privileges): Colorado Revised Statutes § 13-90-107. Who may not testify without consent - definitions (1) There are particular relations in which it is the policy of the law to encourage confidence and to preserve it inviolate; therefore, a person shall not be examined as a witness in the following cases: (a)(I) Except as otherwise provided in section 14-13-310(4), C.R.S., a husband shall not be examined for or against his wife without her consent nor a wife for or against her husband without his consent; nor during the marriage or afterward shall either be examined without the consent of the other as to any communications made by one to the other during the marriage; but this exception does not apply to a civil action or proceeding by one against the other, a criminal action or proceeding for a crime committed by one against the other, or a criminal action or proceeding against one or both spouses when the alleged offense occurred prior to the date of the parties' marriage. However, this exception shall not attach if the otherwise privileged information is communicated after the marriage. (II) The privilege described in this paragraph (a) does not apply to class 1, 2, or 3 felonies as described in section 18-1.3-401(1) (a) (IV) and (1) (a) (V), C.R.S., or to level 1 or 2 drug felonies as described in section 18-1.3-401.5(2) (a), C.R.S. In this instance, during the marriage or afterward, a husband shall not be examined for or against his wife as to any communications intended to be made in confidence and made by one to the other during the marriage without his consent, and a wife shall not be examined for or against her husband as to any communications intended to be made in confidence and made by one to the other without her consent. (III) Communications between a husband and wife are not privileged pursuant to this paragraph (a) if such communications are made for the purpose of aiding the commission of a future crime or of a present continuing crime. (IV) The burden of proving the existence of a marriage for the purposes of this paragraph (a) shall be on the party asserting the claim. (V) Notice of the assertion of the marital privilege shall be given as soon as practicable but not less than ten days prior to assertion at any hearing. (a.5)(I) Except as otherwise provided in section 14-13-310(5), C.R.S., a partner in a civil union shall not be examined for or against the other partner in the civil union without the other partner's consent, nor during the civil union or afterward shall either be examined without the consent of the other as to any communications made by one to the other during the civil union; except that this exception does not apply to a civil action or proceeding by one against the other, a criminal action or proceeding for a crime committed by one against the other, or a criminal action or proceeding against one or both partners when the alleged offense occurred prior to the date of the parties' certification of the civil union. However, this exception shall not attach if the otherwise privileged information is communicated after the certification of the civil union. (II) The privilege described in this paragraph (a.5) does not apply to class 1, 2, or 3 felonies as described in section 18-1.3-401(1) (a) (IV) and (1) (a) (V), C.R.S., or to level 1 or 2 drug felonies as described in section 18-1.3-401.5(2) (a), C.R.S. In this instance, during the civil union or afterward, a partner in a civil union shall not be examined for or against the other partner in the civil union as to any communications intended to be made in confidence and made by one to the other during the civil union without the other partner's consent. (III) Communications between partners in a civil union are not privileged pursuant to this paragraph (a.5) if such communications are made for the purpose of aiding the commission of a future crime or of a present continuing crime. (IV) The burden of proving the existence of a civil union for the purposes of this paragraph (a.5) shall be on the party asserting the claim. (V) Notice of the assertion of the privilege described in this paragraph (a.5) shall be given as soon as practicable but not less than ten days prior to assertion at any hearing. (VI) For the purposes of this paragraph (a.5), "partner in a civil union" means a person who has entered into a civil union established in accordance with the requirements of article 15 of title 14, C.R.S. The reference to C.R.S. § 14-13-310(4) is to the section on child-custody hearings. How Serious Are The Crimes To Which Testimonial Privilege Does Not Apply In Colorado? Class 1, 2 or 3 felonies to which the confidential communication husband-wife privilege applies but not the testimonial husband-wife privilege apply in Colorado are quite serious offenses. Class 1 felonies in Colorado have a mandatory minimum sentence of life in prison without possibility of parole (or life with possibility of parole after 40 years if the offender is a minor). Class 1 felonies include first degree murder for which the death penalty is available in some cases and aggravated kidnapping where death is presumed because the victim has not be released alive. Class 2 felonies in Colorado are punishable by eight to thirty-six years in person (eight to twenty-four years if non-violent, sixteen to thirty-six if violent). Class 2 felonies would include second degree murder, kidnapping involving the rape or robbery of the victim, gang rape, rape committed with a deadly weapon, rape causing serious bodily injury, theft of more than $1,000,000, and attempted Class 1 felonies. Class 3 felonies are punishable by four to eighteen years in prison (four to twelve if non-violent, eight to eighteen years if violent). Class 3 felonies would include heat of passion murder, aggravated armed robbery, aggravated armed burglary, aggravated assault causing serious bodily injury or disfigurement or a permanent disability (and not in the heat of passion), human trafficking for involuntary servitude or sexual servitude (including keeping slaves), kidnapping for ransom or with a deadly weapon, forcible rape, rape committed by incapacitating someone with drugs, or rape caused by a credible threat of "imminent death, serious bodily injury, extreme pain, or kidnapping, to be inflicted on anyone", arson of a building, and theft of $100,000 or more but less than $1,000,000. A class 1 drug felony is punishable by eight to thirty-two years in prison. A class 2 drug felony is punishable by four to eight years in prison. These involve drug dealing of large amounts of drugs and/or drug dealing to children. Among the crimes to which the marital privilege would be still apply would be manslaughter, assault not causing serious bodily injury, theft of less than $100,000, unarmed burglary, unarmed robbery, kidnapping without a weapon and without asking for ransom, drug dealing in moderate amounts to adults, statutory rape, rape by a person in a position of trust, rape without consent but without use of physical force (e.g. by blackmail not involving physical violence threats), or arson of property other than a building. Of course, by charging a serious crime, one may cause the privilege to evaporate even if it is unlikely to result in a conviction for that crime.
In the US, the details are determined at the state level. The term "abandonment" is used very broadly, and can include a situation where a parent leaves a child without making contact for a period of time (which may result in termination of parental rights, but not a punishment). "Abandonment" as it applies in Washington state is explained here. There is what is known as a "safe haven" law, which allows a newborn (under 72 hours old) to be transferred (anonymously) to a qualified recipient (health care employee, medic, etc.), and not be liable under the criminal laws. This does not include dumping the infant in the snow. Under RCW 9A.42.020, the parent would be guilty of criminal mistreatment in the first degree if their action "causes great bodily harm to a child or dependent person by withholding any of the basic necessities of life" (note that the law is not specific to children), and this is a class B felony. There are multiple grades of mistreatment, so if the action "creates an imminent and substantial risk of bodily injury" or "causes bodily injury or extreme emotional distress manifested by more than transient physical symptoms", this is 4th degree mistreatment, which is a misdemeanor. There are, in parallel fashion, laws against abandonment of a dependent starting at RCW 9A.42.060, punished as a class B felony down to a gross misdemeanor. The maximum penalty for a class B felony is $20,000 and 10 years in prison, and for a simple misdemeanor it is 90 days and $1,000. In case death results, the discussion could move to the homicide statutes. Homicide by abuse is when, with extreme indifference to human life, the person causes the death of a child or person under sixteen years of age, a developmentally disabled person, or a dependent adult, and the person has previously engaged in a pattern or practice of assault or torture of said child, person under sixteen years of age, developmentally disabled person, or dependent person. and this is a class A felony. If a person "recklessly causes the death of another person", this is manslaughter in the first degree (class A felony), but if it is "with criminal negligence", it is manslaughter in the second degree (a class B felony). Manslaughter charges are predicated on there not being an intent to kill. If the intent was to actually kill the child, this would be first degree homicide, where the punishment is life imprisonment. Additionally, first degree homicide can be found if "under circumstances manifesting an extreme indifference to human life, he or she engages in conduct which creates a grave risk of death to any person, and thereby causes the death of a person". State v. Edwards is a relevant case, where a person was charged with both second degree murder and homicide by abuse, and the issue came up that "extreme indifference to human life" is not a self-evident expression. It turns out that case law in Washington interprets this, as applied to first degree murder, as meaning "indifference to human life in general", not "indifference to the life of the specific victim". After a lengthy review of principles of judicial interpretation, the court upheld the trial court's refusal to give the first-degree murder definition of indifference, that is, it is up the the jury to decide what constitutes extreme indifference, for homicides other than 1st degree murder.
I'll use Wisconsin as a jurisdiction. If you file a false death certificate, that's a felony. But you probably wouldn't go that far. It could be disorderly conduct. In Wisconsin disorderly conduct is described as follows: Whoever, in a public or private place, engages in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct under circumstances in which the conduct tends to cause or provoke a disturbance is guilty of a Class B misdemeanor. There's also a statute prohibiting "Disrupting a funeral or memorial service" but it won't apply in this case unless disorderly conduct applies. It would raise the penalty to a class A misdemeanor (or a class I felony if you somehow did it again after being convicted once.) On the civil side, there could be an action for intentional infliction of emotional distress, either for the false report of your death, or for a "corpse" suddenly coming to life. This kind of lawsuit requires "extreme and outrageous conduct", but if this isn't, I don't know what would be.
Bob's will leaves everything to Abby. Bob has a brokerage account solely in his name with no TOD on the account. Bob then dies. It is my understanding that for Abby to get the money, you have to go through probate. Am I right about that? Yes, this has to go through probate. I have been told that when you are leaving everything to a spouse you can skip probate. I am thinking that is wrong. You are correct. This said, in a very small dollar estate (e.g. $20,000, with the actual dollar amount varying state by state), some states allow you to transfer assets by affidavit rather than via the probate process, if the sold heir at all and will beneficiary are the same and there are no unpaid creditors with a claim against those funds. New Jersey has two sets of small estate procedures for estates under $50,000. The cutoff is sometimes $10,000, sometimes $20,000, and sometimes $50,000 depending upon the circumstances and the nature of the simplified process sought. It isn't clear to me that they apply in cases where the decedent has a will and therefore is not intestate. Small Estates General Summary: Small Estate laws were enacted in order to enable heirs to obtain property of the deceased without probate, or with shortened probate proceedings, provided certain conditions are met. Small estates can be administered with less time and cost. If the deceased had conveyed most property to a trust but there remains some property, small estate laws may also be available. Small Estate procedures may generally be used regardless of whether there was a Will. In general, the two forms of small estate procedures are recognized: Small Estate Affidavit -Some States allow an affidavit to be executed by the spouse and/or heirs of the deceased and present the affidavit to the holder of property such as a bank to obtain property of the deceased. Other states require that the affidavit be filed with the Court. The main requirement before you may use an affidavit is that the value of the personal and/or real property of the estate not exceed a certain value. Summary Administration -Some states allow a Summary administration. Some States recognize both the Small Estate affidavit and Summary Administration, basing the requirement of which one to use on the value of the estate. Example: If the estate value is 10,000 or less an affidavit is allowed but if the value is between 10,000 to 20,000 a summary administration is allowed. New Jersey Summary: Under New Jersey statute, where as estate is valued at less than $50,000, a surviving spouse, partner in a civil union, or domestic partner, may present an affidavit of a small estate before the Superior Court. Upon the execution and filing of the affidavit, the surviving spouse shall have all of the rights, powers and duties of an administrator duly appointed for the estate. New Jersey: New Jersey requirements are set forth in the statutes below. TITLE 3B ADMINISTRATION OF ESTATES–DECEDENTS AND OTHERS 3B:10-3. When spouse, partner in a civil union, or domestic partner entitled to assets without administration. Where the total value of the real and personal assets of the estate of an intestate will not exceed $50,000, the surviving spouse, partner in a civil union, or domestic partner upon the execution of an affidavit before the Surrogate of the county where the intestate resided at his death, or, if then nonresident in this State, where any of the assets are located, or before the Superior Court, shall be entitled absolutely to all the real and personal assets without administration, and the assets of the estate up to $10,000 shall be free from all debts of the intestate. Upon the execution and filing of the affidavit as provided in this section, the surviving spouse, partner in a civil union, or domestic partner shall have all of the rights, powers and duties of an administrator duly appointed for the estate. The surviving spouse, partner in a civil union, or domestic partner may be sued and required to account as if he had been appointed administrator by the Surrogate or the Superior Court. The affidavit shall state that the affiant is the surviving spouse, partner in a civil union, or domestic partner of the intestate and that the value of the intestate’s real and personal assets will not exceed $50,000, and shall set forth the residence of the intestate at his death, and specifically the nature, location and value of the intestate’s real and personal assets. The affidavit shall be filed and recorded in the office of such Surrogate or, if the proceeding is before the Superior Court, then in the office of the clerk of that court. Where the affiant is domiciled outside this State, the Surrogate may authorize in writing that the affidavit be executed in the affiant’s domicile before any of the officers authorized by R.S.46:14-6.1 to take acknowledgments or proofs. amended 1983, c.246, s.1; 2004, c.132, s.77; 2005, c.331, s.24; 2015, c.232, s.1. 3B:10-4. When heirs entitled to assets without administration Where the total value of the real and personal assets of the estate of an intestate will not exceed $20,000 and the intestate leaves no surviving spouse, partner in a civil union, or domestic partner, and one of his heirs shall have obtained the consent in writing of the remaining heirs, if any, and shall have executed before the Surrogate of the county where the intestate resided at his death, or, if then nonresident in this State, where any of the intestate’s assets are located, or before the Superior Court, the affidavit herein provided for, shall be entitled to receive the assets of the intestate of the benefit of all the heirs and creditors without administration or entering into a bond. Upon executing the affidavit, and upon filing it and the consent, he shall have all the rights, powers and duties of an administrator duly appointed for the estate and may be sued and required to account as if he had been appointed administrator by the Surrogate or the Superior Court. The affidavit shall set forth the residence of the intestate at his death, the names, residences and relationships of all of the heirs and specifically the nature, location and value of the real and personal assets and also a statement that the value of the intestate’s real and personal assets will not exceed $20,000. The consent and the affidavit shall be filed and recorded, in the office of the Surrogate or, if the proceeding is before the Superior Court, then in the office of the clerk of that court. Where the affiant is domiciled outside this State, the Surrogate may authorize in writing that the affidavit be executed in the affiant’s domicile before any of the officers authorized by R.S.46:14-6.1 to take acknowledgments or proofs. amended 1983, c.246, s.2; 2004, c.132, s.78; 2005, c.331, s.25; 2015, c.232, s.2. The consent and the affidavit shall be filed and recorded, in the office of the surrogate or, if the proceeding is before the Superior Court, then in the office of the clerk of that court. Where the affiant is domiciled outside this State, the surrogate may authorize in writing that the affidavit be executed in the affiant’s domicile before any of the officers authorized by R.S. 46:14-7 and R.S. 46:14-8 to take acknowledgments or proofs.
The parties are generally entitled to present their case as they see fit, as long as they stay within the rules of evidence. If they want a straight yes or no, the court will often require the witness to provide one, which keeps lawyers happy, makes the answers clear for the jury, and limits the parties' grounds for appeal. If a yes or no answer is not as accurate as a more qualified answer, the other lawyer would typically have an opportunity to invite the witness to provide a fuller answer on redirect. If a yes or no answer is inappropriate because of assumption embedded in the question -- as in your &quot;beating his wife and kids&quot; example -- the question should quickly elicit an objection from the defense attorney, who would note that the question lacks foundation or assumes facts not in evidence. Assuming there isn't any evidence of domestic violence, the court should sustain the objection, in which case the witness would not need to answer at all.
The will is overridden by the new law. Suppose the owner had not died: then he would have to comply with the change in the law. When a person inherits property, they gain the right to that property which the originally had, and they do not gain any additional immunity to the usual obligation to obey the law.
Short Answer Usually, a divorce decree doesn't leave former spouses as co-owners of the former marital residence, but sometimes this happens anyway. To oversimplify, if the divorce decree leaves a couple a co-owners, either of them can usually force the sale of the property and a division of the proceeds left after paying off the mortgage, in a special kind of lawsuit called a partition action. The rights of mortgage lenders and lienholders against both former spouses cannot be changed without paying off the loan in most cases. If a spouse who lives there isn't able to pay off the old loan and refinance it in their name alone, this usually means that the house will be sold to a third party with the net proceeds of the sale split. The net proceeds from the sale of the house are divided in proportion to their ownership interests in the co-owned property that can sometimes be tricky to calculate. Often the ability of either party to force a sale of the house in a partition action leads the parties to reach a settlement in the shadow of the possible outcome. Long Answer Caveats This answer sets forth the general rules that apply the vast majority of the time. There are some rare and obscure exceptions to these rules that can apply buried in dark corners of Texas law, and this answer doesn't not comprehensively ferret out every single such exception to the general rules. This answer also doesn't discuss ways in which outcomes that shouldn't be allowed by these rules can be made possible by one party or another's procedural mistakes in the court system, which is fact specific and can arise in certain situations. What Is A Divorce Decree? The only way a divorce case can end is for the divorce to be called off (either by mutual agreement or because one or both of the divorcing spouses die before the case is over), or for a divorce decree to be entered by the court, ending the marriage and establishing the rights of the parties after the divorce with respect to each other and their property. A divorce decree can be entered either by mutual agreement of the spouses in a divorce case, but if they can't agree, the judge in the divorce case will impose a divorce decree dividing property and handling other issues in the divorce as the divorce judge sees fit consistent with Texas law. Either way, it isn't official until it is signed by the judge. Sometimes a divorce decree will be very short, but will incorporate by reference one or more other documents like a mutually agreed separation agreement, or a parenting plan, or a schedule of who gets what property in the divorce. The Role of A Divorce Decree Almost anything can be done by mutual agreement (although all decisions related to children must be approved by the judge with a finding that the agreement is in the best interests of the children). A judge has far more limitations on what the judge can do in a divorce decree to establish the post-divorce property rights of the ex-spouses, but the judge still has great discretion in how the judge may make those decisions. Usually, the ownership of a house is handled in a way that leaves only one spouse owning the house in connection with a divorce proceeding. For example, ex-husband may be ordered to transfer the house to ex-wife, and ex-wife may be ordered to transfer her pension to ex-husband in exchange, if that is what the divorce decree says. One of the grounds for appealing a judge's divorce decree decision to a higher court is that the judge didn't adequately separate the spouses financially. But that doesn't mean that a divorce decree can never leave ex-spouses as co-owners of property. Once the divorce case is over, if nothing in the divorce decree separates ownership of the house, then the ex-husband and ex-wife have the same rights with respect to each other that a house co-owned by two people who were never married would have (unless the divorce decree states otherwise). Some divorce decrees, however, prohibit the sale or transfer of the house without the mutual consent of the former husband and former wife (for former husband and former husband, or former wife and former wife, in a same sex marriage), either indefinitely, or for some time period defined in the divorce decree. In rare cases, the divorcing spouses could agree to do something that leaves neither of them owning their house, like agreeing to sell it, or agreeing to give it to charity, or putting it in the trust for their children. The Rights Of Unmarried Co-Owners Of Property When A Divorce Decree Doesn't Provide Otherwise A lawsuit to terminate co-ownership of real estate without the consent of all of the owners of the real estate is called a partition action. In the case of a house that cannot feasibly be divided in kind the way that, for example, farmland could be, what a partition action does is force the house to be sold, with the proceeds divided. Conceivably, one spouse or the other could be both one of the two sellers, and one of the buyers at the partition sale if the spouse that is both selling and buying is the highest bidder in a sale that is open to the general public. In this case, the partition sale is functionally equivalent to cashing out the equity of a spouse who is not the highest bidder at a partition sale. Frequently, given the inevitability of an ultimate partition sale in these cases, the parties will instead reach a mutual agreement to either have one party cash out the other for an agreed valuation of the house and allocation of the equity in the house. Alternatively, another common form of settlement is that the co-owners will agree to sell the house for an agreed price to a third-party and then to divide the net proceeds either according to a pre-agreed formula or in litigation over net proceeds from the agreed sale held in a court controlled bank pending a judicial determination of each spouse's share of the proceeds. Partition actions aren't the most expensive kind of court case, but usually, at least one of the parties needs to have a lawyer for it to go smoothly and the legal fees aren't usually negligible either. Critically, the fact that &quot;mom pays mortgage and lives in the house&quot; doesn't matter much in a partition action after the divorce is over. Paying the mortgage and living in the house are frequently considered to cancel out, rather than changing the share of the equity to which each former spouse is entitled. An ex-wife cannot just get an ex-husband off of the title without being the highest bidder at a partition sale. If ex-husband is the highest bidder, he will stay on the title and she will be off the title and will have to move out or pay him rent. If the third-party is the highest bidden, she will have to move out or pay rent to the third-party, and neither of them will be on the title anymore. The Rights Of Mortgage And Lien Creditors The fact that both ex-spouses are responsible to the mortgage company (and any lienholders who have rights identical to mortgage companies for the purposes of this question) if they were both on the mortgage before the divorce can't be changed without the mortgage lenders consent (which is almost never given), unless the mortgage is paid off in full and (if necessary) refinanced. If there is a partition sale, the mortgage debt must be paid off before either spouse gets any of the proceeds from the partition sale. The Impact of Community Property Laws In Texas One complicating factor in this analysis is that Texas is a community property state. So, to determine what share of the equity in a house belongs to each spouse (if any) you have to apply community property rules that are deceptively simply, but are quite complicated to apply in practice. The general rule of community property in Texas is that property acquired before the marriage or by gift or inheritance by a single spouse, or allocated to a spouse in divorce decree, is separate property. All other property of the couple of community property. Any property for which separate property status can't be proven, or for which there is too much co-mingling of community and separate property, is community property. A spouse is entitled to 100% of the that spouse's separate property, and in addition, to 50% of the community property of the couple, upon divorce. Also, at death, a decedent can't leave the surviving spouse's separate property to someone else, can't leave the 50% of the property that is community property immediately prior to death, that is owned by the surviving spouse, to anyone other than the surviving spouse, without the surviving spouse's consent. Ideally, the divorce decree will spell out what percentage of each piece of land or other property that is owned by each former spouse once they are divorced. But, sometimes a divorce decree entered by mutual agreement, or by a judge, is sloppy and doesn't make that point clear. If the divorce decree doesn't clarify what percentage of the property is owed by each ex-spouse, this has to be cleared up later when the house is sold in a partition action, if there is no mutual agreement to the contrary. A valid pre-nuptial agreement, or a valid post-nuptial agreement, however, can modify the community property rules of Texas that would otherwise apply. The application of community property rules is also particularly complicated in cases where the couple spends part of their marriage in Texas, and part of their marriage either in a state that is not a community property state or that has very different community property laws on some key issues. The Impact Of Post-Divorce Economic Activity Related To The House Also, the amounts spent by the co-owners of the house after the divorce, and the question of whether one of the co-owner has been excluded from the co-owned house by the other, could change the share of each co-owner in the equity in the house after the divorce. The exact rules for how these adjustments are made are complicated, and are often subject to a judge's discretionary decision about this issue should be resolved in a partition action. Footnote Re Gender All of the rules discussed above, even if I haven't worded my explanations that way, are gender neutral. The rules are the same for ex-husbands as they are for ex-wives (and vice versa) in opposite sex marriages, for ex-husbands in same sex marriages, and for ex-wives in same sex marriages.
Generally, irrespective of charge, there is no 'shield laws' in the UK legal system. Any such provisions are a matter of discretion for the judge on the same grounds as the admissibility of evidence. Though the following case relates to a murder case rather than rape, it does provide justification for the lack of 'shield laws'. In R v Davis [2008] UKHL 36; [2008] 1 A.C. 1128 (henceforth Davies), as described in para 3, per Lord Bingham, the witnesses were subject to extensive protective measures, as 'they claimed to be in fear forth their lives if it became known that they had given evidence against the defendant'. [Tom Bingham, The Rule of Law (2011 Penguin) 99]. The case addresses issues at the time of the original hearing. However, more recently, there have been statutory provisions for anonymity of witnesses, specifically section 86 of the Coroners and Justice Act 2009. This enables witness anonymity orders to be made, however there are specific requirements that can be found in subsequent provisions of the Act, but there is no common or absolute protection of victims or witnesses. A closing note regarding the 'victim' in the rape case, it should be noted that in the UK legal system, as criminal cases are brought by the CPS on behalf of the Monarch, not the victim and as such the victim is, for all intents and purposes, a witness.