First, we must define what means to be a fiduciary. A fiduciary is a person who has a legal or ethical relationship of trust. All attorneys are fiduciaries and have a trust relationship with their clients. That means that an attorney always must act in the best interest of their clients in all cases. When a person hires an attorney to represent them in legal matters, they know that their lawyer is always working toward their best interest. While this is vital in all legal matters, one of the cornerstones of our society is that everyone is entitled to a defense. In criminal matters, if attorneys did not have a fiduciary relationship with their clients, the system would break down with accused individuals never sure if their lawyer is working for them or against them.
The process is complicated and in so many ways has to do with money and finances. To properly divide assets, there has to be a proper accounting of everything that each of the spouses own. There must be a determination regarding separate property, and if it is actually separate or if it has been commingled to the point that it is now marital property. There is also the matter of spousal support and, if applicable, child support.
To get a proper gauge of all the assets, each of the spouses have a fiduciary responsibility to be completely open and honest regarding assets, property, money, and other finances. There are several parts of the law that discuss this fiduciary relationship, but they mostly have to do with “full and accurate disclosure of all assets and debts and other liabilities “in which one of both parties may have an interest.”
As with our criminal case example, if there is no fiduciary relationship, the courts would never be able to be sure that they are making decisions based on the most accurate information available, and the system breaks down.
The full scope and breadth of the fiduciary relationship is very complex and will be explained as we proceed through your divorce, though you should be aware prior to proceeding that you should be ready to disclose all of your finances. If there are any exceptions or separate property that should be excluded or you have a premarital agreement that excludes certain property from marital assets, that information should be brought to our attention as well.
If you have any questions about the fiduciary responsibility you have to your spouse, please call us for a free consultation.