Is Ruth Madoff shopping for a divorce lawyer?

Rumors are flying that Ruth is going to try to divorce her husband, jailed fiancier Bernard Madoff. Poor Ruth is under the microscope and even a grocery shopping trip in Manhattan last night made the front pages of the papers this morning. Ruth, allegedly, was buying detergent and cheese…
But is she shopping for a divorce attorney in her effort to keep, how much was it? $93 million of the $850 million she and Bernie amassed during their 50 year marriage?
I am not as seasoned a lawyer as there is out there, but I don’t see what the benefit to Ruth would be in doing that. If her aim is to get her hands on what she feels should be her separate property, a divorce might complicate matters. Because now we are talking about equitable distribution of marital property and at this juncture, how much of that is really “marital property” that was earned during the marriage and how much of that belongs to the investors who were duped by her husband?
I have said I think a better bet is for Ruth to leave the marriage in tact for now, and make an argument for a CONSTRUCTIVE TRUST. But even as I said it, and even now, I’m only suggesting it because it sounds good. I really don’t know if it would work. But I do know that even without getting a divorce, a spouse can bring an action against his/her spouse “for tortious conduct” pursuant to Section 3-313 of the General Obligations Laws
But here is what has to be proven with a constructive trust. Well, first, I should say this:

A constructive trust may be imposed in order to rectify a fraud; it is not a tool for obtaining equitable distribution which is otherwise unavailable. Nevertheless, the constructive trust remedy may be appropriate where the parties are not divorcing or where, in the equitable distribution package, the property may have a separate property component. By Alan D. Scheinkman.

Okay. Well, right off the bat, I worry because it states that a constructive trust may not be used to get equitable distribution where normally none would be forthcoming. And I am sure that opposing counsels in the Ruth Madoff action will argue ferociously that that is exactly what Ruth is trying to do by making an argument for constructive trust. Still, I feel it is her best bet. Because no way shape or form will she be able to get any equitable distribution from Bernie under the circumstances of this case. There is nothing to equitably distribute because she will take subject to all the creditors, I believe, since she has an unsecured claim. And I am not even sure if she will be able to prove grounds. So, again, it’s constructive trust. That’s all she’s got.
These are the elements for constructive trust:
1) a confidential or fiduciary relation: I think Ruth can prove that her relationship with her husband meets this test given that it was “based on mutual trust and fidelity.” See McGrath v. Hilding 41 NY 2d 625
2) a promise: Ruth will have to show that Bernie promised to make the $93 million hers alone, her separate property and he was going to keep the rest, about $800 million. She can argue that that was his express or even his implied agreement with her. That the property would be her separate property (and of course that it came from the brokerage business).
3) a transfer in reliance upon such promise: in reliance on Bernie’s promise, Ruth must argue that she did a ton of work to  improve the value of the portion of the property that he said would be separate. She invested her time doing bookkeeping duties to help out with the brokerage business, as far as the apartment, what did she do? What did she transfer? I’m not sure about this part….yikes… maybe she can argue that she used some money from her “father” to improve the apartment in value in reliance on Bernie’s promise to convey it to her as separate property?….same is true for any stock accounts and stuff like that, btw.  (Oh, and there is a 6 year statute of limitations. They have been married for 50, so she has to say he promised to give her the separate property no earlier than 2003.)
4) unjust enrichment–Ruth has to show that failure to allow a constructive trust would result in unjust enrichment to Bernie. This, admittedly, will take some creativity to pull off. And Ruth also has the problem of showing that her hands are “clean”. Because opposing counsels have the defense of “unclean hands” to say that Ruth should not get the trust because she was in on this with Bernie from the start.
It’s a tough argument, but I think it’s her best one and would net her the best fiscal result.
Everything Ruth Madoff here:
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