If you are considering divorce or in the process, you may be worried that your spouse could empty your joint account during the divorce. The reality is that your spouse cannot deplete your account, and if he or she does so, you have recourse in Court. This situation does occur in some divorces so both parties need to understand the rules.
Why Can’t Your Spouse Empty a Joint Account?
When any divorce action is commenced, the Automatic Orders go into effect. They provide that the parties must maintain the status quo with regard to the family finances and children during the entire pendency of the divorce. The Automatic Orders go into effect for the Plaintiff when the Complaint is signed and for the Defendant when the Complaint is served upon him or her.
Actions that are prohibited by the Automatic Orders include:
- selling, transferring, exchanging, assigning, removing, or in any way disposing of any property
- concealing any property
- causing any asset, or portion thereof, co-owned or held in joint name, to become held in one name solely.
As a result, your spouse cannot empty your joint account unless you consent or your spouse gets a Court Order first.
What Is the Penalty for Violating Automatic Orders?
If your spouse empties your joint account, you can file a Motion for Contempt in Court as the aggrieved party. Your Motion must allege a willful violation of a clear and unambiguous Court Order and you must prove the violation occurred by clear and convincing evidence.
Absent an agreement, the Court will assign a Hearing where both parties have the opportunity to present evidence in support of or in opposition to the Motion for Contempt. If your spouse is found in contempt, the Court may Order that the funds be restored, award you attorneys’ fees, and impose monetary sanctions upon your spouse. Where there are repeated violations of Court Orders, jail time may also be given.
Can You Recover the Money Taken from the Account?
As noted, the Court can Order the return of the money if your spouse is found in contempt. In addition, emptying the account may be considered dissipation of assets, which Courts can consider in determining property division in divorce. Dissipation refers to financial misconduct involving marital assets, such as intentional waste or a selfish financial impropriety, coupled with a purpose unrelated to the marriage.
Accordingly, if you didn’t recover the funds in the contempt action, you can seek to get the money back as part of the final settlement of your divorce. The Court could deduct the amount from your spouse’s share of the marital estate.
Our attorneys are highly experienced in addressing the myriad financial issues arising in divorce, including ensuring that clients’ rights are protected at every stage in the process. If you are considering divorce, contact us for a consultation to learn how we can help you.