Follow up question: First, only party A borrowed the money. Only party A signed the mortgage. Since party B contributed finances and labor to improve the property( helped purchase the equipment, helped clear the land, paid on the mortgage) party B spent a great deal on money. If this occurred outside of marriage, the fraud I mean, there would be no question that an actionable tort had been committed by Party A. For years Party A told Party B that the property was owned equally. Party B made the mistake of believing one's life time best friend and partner in marriage. Someone that presumably was deeply in love with Party B.
A: Fraud requires a fairly complex proof: "1) the fraud feasor must have made at least one representation of past or existing fact; 2) which was false; 3) which the fraud feasor knew to be false or made with reckless disregard as to its truth or falsity; 4) upon which the plaintiff reasonably relied; 5) and which harmed the plaintiff." Scott v. Bodor, Inc., 571 N.E.2d 313 (5th Dist. App. 5/16/1991). Attorneys who plead fraud do so with other fallback complaints, and the fraud action may be as much a tactic to help make the client happy that the attorney is as outraged as the client, as it is a colorable cause of action. In ordinary civil actions, most fraud claims fail, because of the lack of objective proof, and the case ends up as a straight breach of contract. So, when you say that the fraud would be clear outside of the marital relationship, you may be setting yourself with unreasonable expectations by considering what may ultimately be a false premise.
What I am asking is not the degree of difficulty in proving the fraud but if the fraud is actionable.
A: Yes, and it is actionable within the scope of the divorce action. Ehle v. Ehle, 737 N.E.2d 429 (Ct. of App. 10/25/2000)("Although Indiana Law no longer recognizes a presumption of superiority or dominance by one spouse over another, a spouse is not precluded from proving the superior knowledge or status of the other spouse to justify reliance for constructive fraud purposes."); Mullen v. Cogdell, 643 N.E.2d 390 (5th Dist. App. 9/30/1994)("In constructive fraud, law infers fraud from relationship of parties and circumstances which surround them.")
Would it be legal for a judge to consider the fraud in the divorce settlement.
A: If you prove the fraud, then the judge can consider it in making the final judgment for property division purposes (see above).
I am not saying that Party A gave the land as a gift to party B as u suggested but that he knowing used Party B and lied to Party B so Party B would act in a manner that was not in Paty B's best interest. If the judge awards the bulk of the assest to party A, would a separate civil suit have any chance of success?
A: No. A separate lawsuit would be barred by the doctrine of res judicata. A plaintiff must raise all legal and equitable claims arising from the same transactions or occurrence as part of the same action, or be forever barred from subsequent action.
And in final follow up question, would you work 13 years and pay $50,000 on someones house if you knew you had no interest in the property?
A: If you were to ask this in court, I would object to the question as irrelevant and argumentative. If you were to ask the question in an office consult, I'd say, "Of course not, let's get the bas****!" And, you would get all excited and cut me a check for my $7,500 retainer. But as you are asking me here, my answer is that it really doesn't matter what I think or what I would do in similar circumstances. This is your case and so only you can answer the question. My suggestion is simply that you do not put all your eggs into the fraud basket, because, as previously mentioned, fraud usually turns out to be the claim that can't be proved. If you have a lawyer, try to come up with an alternative argument to fraud, just in case the fraud is not getting any traction.
In a divorce, the court only needs to divide the property in a just and reasonable manner. Convince the court that your claims are just and reasonable and you don't need to prove fraud to get what you want.
Hope this helps.
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