Running with United States v. Totaro: Should Divorce Law Preserve Innocent Non-owner Spouses’ Rights in Property Subject to Federal Criminal Forfeiture?

Matthew Jordan Cochran

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Abstract

In United States v. Totaro, the Eighth Circuit called for an application of New York divorce law in dividing between the government's interest and that of the innocent Adrienne Totaro in property subjected to forfeiture by her husband's RICO offenses. Adrienne owned legal title to a portion of the property. But shouldn't the law also protect innocent spouses who do not hold title?

By requiring judges to give weight to the marital contributions of the homemaker spouse and not just the breadwinner, equitable distribution and community property regimes in most states address the hardship historically imposed on women by division of property according to title. This worthy policy objective should also find expression in federal criminal forfeiture law.

This article examines the merits and difficulties of the analogy at which the Totaro court only hinted: putting the government in the defendant’s shoes and treating the RICO conviction as a divorce, upon which the court must divide any forfeit portion of the marital estate between the government and its "former spouse."