This is a criminal/civil/victim issue. We have an assault-family violence case in which the victim (wife) incurred substantial medical and relocation bills because of the defendant's (husband's) violence. The parties have filed for divorce, which is currently pending trial. The defendant's attorney (same attorney for criminal case and divorce) is saying that any restitution awarded in the criminal case would be a debt of the community, and the wife would be liable for half of the debt. I can't seem to find anything in the family code or code of criminal procedure that addresses this issue. Any answers?
An order under art. 42.037(a), (b)(2) becomes the personal obligation of the defendant and can be enforced against him in the same manner as a civil judgment under subd. (m). The criminal court should not be worried about how the obligation may later be treated by the divorce court judge.
But, secs. 3.201 and 3.202(d)of the Family Code may answer the issue posed. I do note that a criminal restitution order was treated as involving "tortious liability" by the San Antonio Court in Minsal v. Garcia (No. 04-13-00593-CV). The wife is not personally liable for her husband's conduct and one may presume the husband will be awarded sole responsibility for payment of the restitution upon divorce, even if that requires an unequal division of the community assets. But, the wife needs to consult with divorce counsel.
