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

Divorce often leads otherwise rational people to behave in questionable ways. As a result, it’s prudent to consider how you plan to handle your finances before you file for divorce. Conventional wisdom counsels that you should take half of the money out of your bank account before filing for divorce. But is this a wise choice?

Deciding whether or not to take half of the money out of your joint bank account requires a nuanced understanding of your finances and a clear grasp of how you plan to approach your divorce. Divorce is a complex legal proceeding that progresses through a number of different stages. Each stage has specific and limited goals. A critical understanding of the possible outcomes for each discrete part of the process is a key factor in successfully navigating your divorce. Working towards an outcome that is appropriate for each specific phase is an important part of how a lawyer works.

Spouses in New York are entitled 50 percent of jointly titled funds. Transfers from jointly held accounts must take place before legal action begins. New York automatically places restrictions on these sorts of transactions after the initiation of a divorce.

Once a divorce is filed, the judge usually enters an Automatic Temporary Restraining Order (ATRO). This ATRO places limits on the ways in which both you and your spouse may use the money in the joint bank account. You may, however, petition the court for access to the funds during the case.

While you do have the right to 50 percent of your jointly titled marital funds, it doesn’t necessarily follow that you should take money out of the account. Withdrawing money before filing for divorce is a particularly aggressive act that can make the coming divorce proceedings more combative than they need to be. And under no circumstances should you ever withdraw more than 50 percent of the money in the jointly titled bank account. This is true even if your spouse has other accounts titled only in their name to which you believe you are legally entitled.

In reality you have two separate financial issues to consider. First, you need to determine how you plan to pay for attorney fees and living costs in the immediate future. The post-divorce division of marital assets is a second, but related, issue. Division of marital assets is a matter for the court to decide. And courts frown on self-help activities in the area of marital asset distribution by any party.

The most practical option to make sure your immediate needs will be met involves open communication with your spouse about liquidating the jointly held bank account with each party taking 50 percent of the money. This ensures that you will have sufficient means to pay for your immediate living expenses and attorney fees. Think of the final distribution of marital assets as a separate issue.

Speak with your attorney about the best approach to determining how to appropriately address the situation before taking any definitive action. Your attorney will most likely speak with your spouse’s lawyer and together all parties can create a sensible resolution to the immediate problem.