By Donald P. Schweitzer CFLS.
You may have heard that "possession is nine tenths of the law." This old saying still rings true in many situations. However, those who embrace this principle during a divorce may want to think twice about fighting over personal property with their estranged spouses. According to a recent appellate court decision - People v. Aguilera*, a person who gains possession of community property against another spouse through force or fear is guilty of robbery.
In People v. Aguilera the husband was found to have assaulted his wife. During the assault Mr. Aguilera took his wife's cell phone from her and ran off with it. The cell phone had been purchased during marriage which made it community property.
Mr. Aguilera was subsequently arrested and convicted after a jury trial for robbery. On appeal Mr. Aguilera argued the trial court erred by not giving the jury special instructions that a person cannot be found guilty of robbery if the property taken was community property. In other words, a person cannot be guilty of stealing his or her own property. Unfortunately for Mr. Aguilera, the Court of Appeal disagreed and upheld the conviction.
The lesson we should take from this case is that people going through a divorce should refrain from taking self-help in retrieving property. It is common for spouses to try to gain possession of property such as cars, computers, and jewelry during a divorce, while the other spouse is not looking. The risk of this behavior is that the other spouse may be present during the attempt to take the property and a struggle may ensue. One can never be sure of how an incident will be perceived by law enforcement and it is very possible that they will make an arrest.