Can A Divorce Shield The Assets Of Derek Chauvin From Civil Lawsuits? Not Necessarily.

200529-derek-chauvin-mug-inline-ac-947p_8d9dd7099ef74c31fea0f3779d824fb9.fit-720wKellie Chauvin, the wife of former Minneapolis police officer Derek Chauvin, has announced that she is filing for divorce after 10 years of marriage.  In her statement, she expresses sympathy for the family of George Floyd.  There is no evidence that this is a tactic to shield assets from the inevitable civil lawsuit against the estate of Chauvin.  However, it is a question that often comes up with clients that I dealt with on both civil and criminal cases.  When faced with potential of civil liability, some clients raise the possibility of shielding their assets by transferring them or seeking a divorce.  Such maneuvers often do not work for a variety of legal and practical reasons.

Once again, Kellie Chauvin has not shown or stated any such intention. A public statement declared:

“Her utmost sympathy lies with [Floyd’s] family, with his loved ones and with everyone who is grieving this tragedy. While Ms. Chauvin has no children from her current marriage, she respectfully requests that her children, her elder parents, and her extended family be given safety and privacy during this difficult time.”

There are also other reasons (beyond incompatibility or asset protection) that some clients consider divorce in high-profile cases. The most common is that a defendant wants to shield his family for hatred and abuse.  A divorce can seem like abandonment but it is often preferred by a defendant who does not want to see his or her spouse (or children) face public ridicule or abuse.  In this case, it is likely that the Chauvins will not be living with each other any time soon, or perhaps never again.  A divorce can reflect that reality in trying to shield not assets but family members. (The Chauvins do not have children).

Now to the legal question of whether estate assets can be shielded through transfers or divorce.  Courts have flagged transfers or divorces that appear opportunistic or strategic in anticipation of liability.  One such case comes from Minnesota where this issue could play out in the court. The 2014 case is Citizens State Bank Norwood Young America v. Gordon Brown and the Minnesota Supreme Court faced a divorce of a couple of 23 years. Notably, the husband under the divorce was assigned all of the debt while his wife was awarded most of the liquid assets. They continued to live together.

When the Bank was awarded a default judgment against the husband in June 2010, it found it difficult to collect and by October 2010 the divorce was final. The bank went after the assets of the wife and relied upon the Minnesota Uniform Fraudulent Transfers Act (MUFTA). MUFTA is designed to prevent the removal of asserts to avoid payments under liability judgments.

MUFTA is not a new concept. Minnesota’s territorial legislature enacted an early such law in 1851.  See Minn. Rev. Terr. Stat., ch. 64 (1851) (covering “[e]very conveyance ․ made with the intent to hinder, delay or defraud creditors ․ shall be void.”).

The law contains “badges of fraud” to courts to apply in deciding whether a transfer was fraudulent. Section 513.44(a)(1) provides that “[a] transfer made or obligation incurred by a debtor is fraudulent as to a creditor ․ if the debtor made the transfer with actual intent to hinder, delay, or defraud any creditor.” A “transfer” is defined as “every mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with an asset.” Minn.Stat. § 513.41(12).

The Court ruled that “[t]he presence of several badges of fraud, however, creates an inference of fraud that requires clear evidence of a legitimate purpose to rebut” and “[t]he Browns have failed to rebut this inference.”

Other states have also applied such laws to divorce proceedings.   See Enlow v. Enlow, 352 Ga. App. 865, 868 (2019); Canty v. Otto, 304 Conn. 546, 558 (II) (41 A3d 280) (2012); RES-GA Lake Shadow v. Kennedy, 227 S3d 522, 527 (Ala. Civ. App. 2017); Estes v. Titus, 481 Mich. 573, 592, 751 N.W.2d 493 (V) (751 NW2d 493) (2008) (Michigan); Fadel v. El-Tobgy, 245 Ore. App. 696, 705 (264 P3d 150) (2011); Kardynalski v. Fisher, 135 Ill. App. 3d 643, 651 (482 NE2d 117, 90 Ill. Dec. 410) (1985).

In California, the court in Mejia v. Reed, 31 Cal. 4th 657, 668-669, 3 Cal. Rptr. 3d 390, 74 P.3d 166 (II) (D) (74 P3d 166) (2003)  ruled that “[California’s] UFTA applies to property transfers under [marriage settlement agreements]” and “[i]n view of [the] overall policy of protecting creditors, it is unlikely that the Legislature intended to grant married couples a one-time-only opportunity to defraud creditors by including the fraudulent transfer in [a marriage settlement agreement].”

These cases can present difficult questions as a court tries to determine if the divorce was based on substantive rather than strategic motives.  Some cases like that of the Browns in Minnesota are easier due to such facts as the couple continuing live together. That will not be the case with the Chauvins since Derek Chauvin is in jail and will likely remain there.  However, if the family sues, they could raise this issue to seek assets from Kellie Chauvin.

Little is known about the assets of the estate or Kellie Chauvin’s personal wealth. She was born in Laos and came to the United States in 1977 at age three.  She was crowned as Mrs. Minnesota in 2018. 

If the estate has limited assets, Derek Chauvin may decide that he is better off with a public defender since he would quickly exhaust his assets anyway.

Minnesota is a no fault jurisdiction so the case can move more quickly, particularly if there is no dispute on the dissolution of assets. However, a one-sided dissolution as with the Browns can itself be an indicator of fraud.