Legal Question in Family Law in Washington

Can I sue my ex husband for lying during out medation from 11 years ago in Washington State? We were very wealthy and I feel I was cheated, I have been in poverty for over a year now. The ex asked me to keep our divorice out of court and I really wished I would had took our case to court because the Judge probably would had a order of more money.

Asked on 7/16/13, 10:52 am

1 Answer from Attorneys

Amir John Showrai The Pacific Law Firm, PLLC

This is a great question because it comes up all the time when I get consulted on a case such as yours, and I do not recall ever answering it for LawGuru. That said, on the facts of your case, although it is possible, you are unlikely to prevail.

First, the statute of limitations on fraud in Washington is three years. See RCW 4.16.080. However, the three years is tolled until discovery of the fraud. That said, if you did not discover it, but a reasonable person in your position would have, then if the facts surrounding why you did not know point to you burying your head in the sand, then you are out of luck. So, think of it as the three year clock starts to run when you KNEW or SHOULD HAVE known about it.

Second, assuming you can get around the statute of limitations, you still have to prove fraud. To do so, there are nine elements of fraud, all of which you need to prove. The standard of proof is very high: "by clear and convincing evidence," or "CCE." To know what that means, think of it this way. If the criminal standard of proof known as "beyond all reasonable doubt" meanING 90-95%, and the normal civil standard of proof, known as "by a preponderance of the evidence" means anything more than 50%, then CCE means something akin to 75%. The numbers are for illustrative purposes as there is no actual percentage involved, but I think you get the idea.

Third, once you get around the statute of limitations and you have clear and convincing evidence, you need to meet these nine elements to prevail.

(1) representation of an existing fact had to be made to you,

(2) that the representation was material (meaning significant to the case),

(3) that the representation was false,

(4) that the speaker knew that the representation was false,

(5) that the speaker intended for you to rely upon that false representation,

(6) that you did not know that the representation was false,

(7) that you relied upon the representation,

(8) that you had a right to rely upon that representation, and

(9) that you have sustained damages.

If any of these is missing, you are out of luck. The bar is set very high in fraud because once proven, the party who is found to have committed fraud is going to be in a lot of hot water. Much of the time, I start with the last elementódamages. If you didn't suffer any, then forget about it. If you did suffer, can you prove the damages? That's often very hard to do. Most non-attorneys are surprised how hard it is to prove damages. Just because someone lied and now you are poor does not mean you suffered damages. You have to connect the dots between their actions and your poverty.

Last, as a practical matter, in fraud cases where 11 years have passed since you mediated, how will you prove the nine elements of fraud with this much passage of time? Does the mediator even have notes or remember the case? (Highly doubtful.) Do you have originals of documents showing the false representations? If the false representations were oral only, the mediator is then going to be your only witness. While we are at it, think of practicalities, how are you going to pay a fraud based motion? Be prepared to pay between $5,000-$10,000 to have an attorney handle this.

I do not mean to discourage you. However, you may as well know now, how hard it is going to be. Perhaps you will have a strong case. The only way to know is to consult with an attorney. Before doing so, make sure to gather all the documentation of the false representations that were made, as well as proof of damages. Then set up a meeting with an attorney so that the attorney can have enough information to look at and render you an informed opinion on how to proceed.

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Answered on 7/16/13, 12:16 pm

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