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Can I take half the money out of our joint bank account?

July 11, 2017

Everyone knows a divorce can be messy and drag out into a legal slugfest that seems to ultimately benefit no one. And what about joint bank accounts? Must you wait for the courts to divide the contents down the middle or can you just go ahead and withdraw your portion? Here’s the thing. A divorce filing gives rise to many legal issues, especially regarding marital and community property. There’s also a chance that an Automatic Temporary Restraining Order (ATRO) may have been filed that prevents either spouse from withdrawing any funds at all until things are sorted out. Here are the factors you should consider.

Before Legal Action

In general, by definition, a joint bank account entitles each spouse to half of the assets it contains. Unless there are other mitigating factors, which we’ll get to in a moment, you should feel fairly safe to withdraw up to half the money in a joint account prior to any legal action commencing. When two people hold a joint bank account, each has equal right, in the eyes of the law, to withdraw and spend up to half the contents any way they choose. You don’t need the permission of the other account holder for that. Keep in mind this is likely to be the case BEFORE any divorce action has started.

After Legal Action

Any time a spouse files for divorce there may be an accompanying request to freeze all assets until the courts have sorted everything out. That’s where the ATRO comes in. Think of it as a restraining order for property, which includes contents of any checking accounts. The task before the court is to decide which property was brought into the marriage (known as separate property) and which has been accumulated during the union. It makes a difference.

For example, if the joint checking account in question was filled solely with money from a spouse’s inheritance that was distributed before the marriage, there’s a good chance the other spouse will have no legal right to any of it, or perhaps only a reduced portion. The bottom line is the court does not take kindly to a party to a legal action deciding unilaterally to take half of any contested asset.

Divorce Mania

Sadly, divorce often devolves into a game of trying to hide jewelry and other valuable assets from the other spouse, perhaps cleaning out accounts and selling off investments, all without the other party’s knowledge or consent. It’s understood that not having enough money to live on during a legal proceeding, especially for a low or no-income spouse, is a matter of great concern. The question of how much (if any) you would be safe to withdraw from a joint account leads us into our next point of discussion.

Talk to Your Queens County Divorce Lawyer First

Family law, which divorce falls under, is too complex a topic for the average person to try and sort out on their own. Your best bet is to talk to a divorce attorney first, preferably without telling your spouse about it. While you may decide to make every effort to reconcile, you need to know where you stand legally, and what your options are when it comes to accessing a joint account.

The Bottom Line

Here’s something to keep in mind. Only nine states practice the “community property” concept which allows for the equal distribution of all property and assets. Forty-four states go by the concept of “equitable distribution,” which takes into account factors like earning capacity and physical or mental health. The end result might well be lopsided. Ultimately, ask your attorney to cover all these points before you make a withdrawal. Otherwise, you might end up forced by the court to pay it back.

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