My ex-spouse was arrested for dealing drugs. Can I lose my house?

If the prosecutor or police have evidence that you knew your home was purchased with money earned from drug sales, or that you knew that drug deals were taking place in your home and did nothing to try and stop them, you could lose your house.

Under federal and state laws, law enforcement officers can seize property if the property is used to commit a crime or purchased with money earned from criminal activity. The seizure is known as "forfeiture," and it's done without compensation to the owner.

Forfeiture laws are intended to deter crime, and some prosecutors and police departments use forfeiture aggressively, particularly against drug traffickers.

Forfeiture: Civil and Criminal

Forfeiture can be civil or criminal. In criminal forfeiture, the defendant is first convicted of a crime that allows for forfeiture, such as drug trafficking or money laundering. Then, if the prosecutor can prove that the defendant's property was earned from or used in illegal activity, the government seizes that property.

For more information on forfeiture in federal criminal cases, see Forfeiting Property in a Federal Criminal Case.

In civil forfeiture, the owner does not need to be convicted of (or even charged with) a crime. Civil forfeiture laws allow law enforcement officers to seize property that they suspect is connected to criminal activity. Then, it's up to the owner to show that the property has no connection to any crime, or that the owner had no knowledge of any criminal activity.

Defenses to Forfeiture

Owners can protect themselves. Property cannot be seized if it was not involved in a crime or if an "innocent owner" was not aware of the illegal nature or use of the property.

For example, in 1982 Beth Ann Goodwin's boyfriend gave her money to purchase a house. Seven years later, he was indicted in federal court on charges of narcotics trafficking. The government tried to seize Goodwin's house, arguing that it was purchased with money made from drug sales. Goodwin fought the seizure and the case went to the United States Supreme Court. The Supreme Court decided that Goodwin had the right to present evidence that she was an innocent owner and did not know the illicit source of her boyfriend's gift. United States v. 92 Buena Vista Avenue, 507 U.S. 111 (1993).

But if there is evidence that you knew of your ex-spouse's criminal activity, you could lose your house. In 1988, Paul and Ruth Derbacher, an elderly couple, lost their Connecticut home after police raided their house and arrested their twenty-two year old grandson for selling drugs. Police found $50,000 worth of marijuana and cocaine in the house. Both the Derbachers and their grandson faced criminal charges. Prosecutors claimed the drugs were kept in plain view and that the Derbachers must have been aware of their grandson's illicit activities. Although the Derbachers fought the seizure, they ultimately reached a settlement agreement. The house was sold, and the couple split the proceeds of the sale with the government.

In all civil forfeiture cases, the burden is on the owner to show that the property should not be seized, and owners sometimes have to first file a lawsuit (an expensive proposition) to raise these defenses. In criminal forfeiture cases, anyone who has an ownership interest in the property will have an opportunity to present their claim to the judge deciding the case.

Getting Legal Advice and Representation

If your property is seized or if your ex-spouse is arrested for dealing drugs and you think your house may be at risk of being seized, you should contact a local criminal defense attorney immediately. Forfeiture proceedings can be complicated, particularly if the property has also been the subject of a divorce settlement. You will need an attorney to represent your interests and help you understand the process. With an attorney's help, hopefully you can protect your property rights.

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