Question: My husband and I (married 15 years, no children) have been involved in a nasty divorce for the past year. I am a free-lance physical therapist and work for a number of nursing homes. He works for a large company as an accountant. Throughout our marriage, he kept our books, paid the bills, prepared all income tax returns, and handled all investments. Since we have not been able to come to terms, he recently sent me an e-mail stating that unless I agreed to take only 35% of the assets, he would play “hardball” and report me to the IRS for overstating my business expenses.

He says that even if I am found not to have a tax problem, I’ll have the pay the expenses of an audit. He also threatened to swear out a warrant for domestic violence based on mutual combat (I’m ashamed to say) that we had before I left him. He also threatened to call all of the businesses that contract with me and tell them that I have been cheating the government. He says that he is frustrated with the log jam and expense of paying lawyers, and is giving me one chance to “get right with the Lord” before he contacts the authorities.

My lawyer then received a letter from his lawyer stating that if I settled according to my husband’s terms, he would sign a release and wouldn’t prosecute me or report me. My lawyer says that my husband is perfectly within his rights to report me and take out a warrant, but I don’t think I should be bullied and accept only 35% of what we acquired when I contributed 60% of the income. I also don’t think it's fair for them to use the threat of criminal prosecution as leverage to try to get me to settle. On the other hand, even though I have done nothing wrong, I know that their threats will cause me additional expense and keep me in turmoil for a long time. I would appreciate your advice.

Answer: While your husband may have a right to report you and prosecute you, tying criminal prosecution to settlement of a civil case is a “no-no.” First of all, attorneys are prohibited from using or threatening to bring criminal charges where, as here, the purpose is to secure an advantage in resolving a civil matter. If this was not the rule, there would be threats of criminal prosecution – with basis or not – in every litigation in an effort to try to gain a collateral economic advantage.

Second, your husband’s threats to conceal crimes if you settle may well amount to a crime in and of itself. Assuming there is probable cause that you are guilty of tax evasion and domestic violence, if your husband and his lawyer are willing to deliberately conceal this information in order to extract money or other concessions from you, this may well constitute misprision of felony.

Third, if you settle your case based on your husband not prosecuting you, your settlement agreement, which is a contract, could well be based on illegal consideration and therefore be unenforceable.

What can you do? Your lawyer needs to address all of these very serious problems, plus the potential efforts to damage your business relationships, which would probably rise to the level of giving you a separate legal cause of action against your husband for damages.