Birmingham AL Collaborative Divorce Law Blog

Friday, March 4, 2016

Forgery & Identity Theft Between (Ex-) Spouses

Signing your spouse’s name, filling in their date of birth and listing Social Security numbers happens all the time in many marriages.  Checking accounts, forms for schools/jobs/home/etc. and a host of other opportunities arise when necessity or convenience demands signing “Jill Jones” rather than “Steve” or vice-a-versa.  More often than not, these instances are inconsequential and are consensual between the spouses.  But what happens when your spouse or your ex-spouse uses your name, your social security number or your date of birth without your knowledge and without consent?

This is known as identity theft and is a federal crime which was officially recognized in 1998, when Congress passed the Identify Theft and Assumption Deterrence Act.  This legislation criminalized and created civil remedies for “knowingly transfer[ring] or us[ing], without lawful authority, a means of identification of another person with the intent to commit, or to aid or abet, any unlawful activity that constitutes a violation of Federal law, or that constitutes a felony under any applicable State or local law.”  18 U.S.C. § 1028(a)(7).  From a criminal liability standpoint, the offender can receive up to 15 years in prison, fines and restitution, and forfeiture of personal property.  In a civil context, various claims for fraud may be asserted against the perpetrator, including identification fraud, credit card fraud, computer fraud and financial fraud.

In a marital context (both during marriage and post-divorce) common identify theft scenarios include the forging of a (ex-) spouse’s name, social security number and/or date of birth to a credit card application or student loan application.  These scenarios fall under the term of “forgery” in Alabama, and include any written instrument, whether complete or incomplete, “which is capable of being used to the advantage or disadvantage of some person.”  Ala. Code § 13A-9-1.

As a quick aside, this situation is NOT the same as where your ex-spouse and you are listed jointly on a credit card.  If your spouse continues to use that credit account and you are listed by name as well, you may still be liable for those charges.  To that end, be sure to inform your attorney of all joint accounts you may have with your soon to be ex-spouse.  Closing those accounts will prevent future access, and potentially avoid future credit problems.  The Federal Trade Commission has long warned divorcing couples “that the divorce decrees they negotiate, such as a commitment that one ex-spouse will pay off credit card debt, does not absolve the other ex-spouse from responsibility from the perspective of the credit reporting agencies. Creditors can still demand payment from the other spouse, which can negatively affect credit scores if it goes unpaid.”

So…what do you do if you’ve alerted your attorney to all potential joint accounts, but you still think you might be at risk?  (Note: this advice applies to everyone getting divorced, not just if you think there might be a problem.  Be proactive.  If you’re considering or in the midst of a divorce, do number 1 just to protect yourself.)

  1. Once every 12 months order an Annual Credit Report.(It’s free and you should be doing this regardless just to keep tabs on your personal information and credit.)
  2. If you find something erroneous or see that a card or account was opened without your knowledge or consent, you should file a police report and notify (IN WRITING) all major credit bureaus (Equifax, Transunion and Experian).
  3. With your dispute, include any supporting documentation you may have, along with an ID Theft Affidavit.
  4. Be sure to include all relevant contact information, including name, address and Social Security number.
  5. Send this package via certified mail and pay the extra $2.80 for a return receipt to prove it was delivered.
  6. Be sure to alert your divorce attorney and provide them with a copy of everything you send to the credit reporting agencies.
  7. Keep a copy of everything for yourself.
  8. If the reporting agencies do not correct your report, talk with your attorney about the possibility of suing the credit reporting bureaus.Failure to remove an incorrect credit report or illegal credit opening can constitute a violation of the Fair Credit Reporting Act and you may be entitled to civil recoveries.

If you are considering divorce, separation or modification of an existing divorce decree, including custody changes, the law firm Nolan Byers can assist you with all of these issues.  We have extensive experience handling identity issues which arise in the domestic legal arena and can help guide you through the process of making you whole.  If you have experienced, or think you may be the victim of, any scenario outlined above, contact the attorneys at Nolan Byers for legal help and advice.

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