Money worries are common during divorce. It is scary if your spouse takes all the money from your bank account. This can happen even before anyone files divorce papers. Knowing what to do can help protect you.
Can My Ex Really Empty Our Joint Account Before Divorce?
Yes, It Can Happen: If your spouse’s name is on the joint bank account, the bank usually lets them take money out. They can take some or all of it. The bank sees both people on the account as owners.
Bank’s Viewpoint: The bank does not take sides in your marriage problems. As long as the person is listed on the account, they have access. They can empty the account down to zero dollars.
What This Means for You:
- Your spouse might take all shared money.
- The bank probably won’t stop them without a court order.
- You could be left with no money suddenly.
Important Facts About Joint Accounts:
- Both names mean both people have full access.
- One person can close the account alone.
- This risk exists until a court steps in.
Real Life Example: Sarah and Tom were fighting a lot. Tom went to their bank one day. He took out all $10,000 from their shared savings. Sarah found out when her debit card didn’t work.
What If There Is No Court Order Yet?
No Order, Fewer Rules: Before a divorce case starts, there are usually no court orders about money. This means there is no official rule stopping one spouse from taking money. If money is frozen by a court later, taking it breaks the order.
The Danger Zone: The time before filing divorce papers is risky. Without a court order freezing assets, your shared money is not protected. Your spouse might act quickly if they plan to leave.
Key Things Before Court Orders:
- No legal block prevents taking money.
- Spouses on the account have bank access.
- This applies to checking and savings accounts.
Why Orders Matter:
- Court orders legally freeze money.
- Violating an order has serious results.
- Banks must follow court orders they know about.
Real Life Example: Maria suspected her husband might file for divorce. Before any papers were filed, he moved their joint savings to his private account. Since there was no court order, the bank allowed it.
How Does the Bank View Joint Accounts?
Bank’s Simple Rule: For banks, a joint account means both people own all the money. It doesn’t matter who earned it or put it in. Either person listed can take out any amount.
Equal Access: The bank gives equal power to everyone named on the account. They are not involved in who deserves the money more. Their job is to follow the account agreement rules.
Bank Actions Allowed:
- Letting one owner withdraw everything.
- Allowing one owner to close the account.
- Not needing permission from the other owner.
What Banks Don’t Do:
- Decide how marital money should be split.
- Stop access without a legal order.
- Warn one spouse if the other takes money.
Real Life Example: David put most of his paychecks into a joint account with his wife. When they decided to split, his wife took 80% of the money out. The bank told David they couldn’t stop her because her name was on the account.
What Should I Do Right Away If the Account Is Emptied?
Act Fast: If your spouse takes all the money, you need to act very quickly. The first step is often to talk to a lawyer. You should file for divorce immediately.
Ask the Court for Help: When you file for divorce, ask the court for an emergency order. This order can tell your spouse to put the money back. It can also freeze any remaining assets.
Immediate Steps to Consider:
- Contact a family law attorney right away.
- Gather any proof of the account balance before it was emptied.
- File divorce papers as soon as possible.
Why Speed Matters:
- The money might still be recoverable if you act fast.
- Waiting makes it harder for the court to help.
- Filing starts the legal process to protect your share.
Real Life Example: Lisa discovered her husband cleared their joint checking account. She called a lawyer that same day. They filed for divorce the next morning and asked the judge to order the money returned.
Can a Court Order the Money Back?
Yes, Courts Can Order It: A divorce court has the power to order your spouse to return the money. This is called ordering them to reinstate or replenish the funds. The judge will look at when and why the money was taken.
Factors the Court Considers: The judge will want to know if the money was taken right before the divorce. They check if it seemed like spite or an attempt to hide money. If so, they are more likely to order it back.
Court Actions Possible:
- Ordering the exact amount taken to be put back.
- Freezing other assets until the money is returned.
- Adjusting the final property division to make up for it.
When Courts Are More Likely to Help:
- You filed for divorce very quickly after the money was taken.
- You can show the money was taken unfairly.
- The spouse took the money knowing divorce was coming.
Real Life Example: During their divorce, a judge found Mark took $20,000 from a joint account just to hurt his wife. The judge ordered Mark to return the full amount. He had to sell some stocks to do it.
What If My Ex Already Spent the Money?
Spent Money Is Harder: If your spouse took the money and quickly spent it all, getting it back is tough. Maybe they gambled it away or paid off personal debts. The court can still order them to pay, but they might not have the cash.
Court’s Options Then: If the money is gone, the court might look at other marital assets. They could give you a larger share of something else. This could be equity in the house or retirement funds.
Challenges When Money Is Spent:
- The actual cash might be impossible to recover.
- Proving where the money went can be hard.
- You might rely on other assets for fairness.
How Courts Can Still Help:
- Awarding you more from other shared property.
- Ordering payments over time from the spouse’s future income.
- Holding the spouse responsible for the lost amount.
Real Life Example: Ben emptied the joint account and lost it all at a casino before the divorce was final. The judge couldn’t get the cash back. Instead, the judge gave his wife a larger share of Ben’s retirement account.
Is Taking the Money Considered a Crime?
Usually Not a Crime: Taking money from a joint bank account before a divorce order is usually not a crime. Since both names are on the account, the bank allows access. It is seen as a civil matter for the divorce court, not criminal court.
Focus is on Fairness: The divorce court looks at whether taking the money was fair to the marriage partnership. They focus on dividing marital assets equitably. Criminal courts handle theft, which usually doesn’t apply here.
Why It’s Not Typically Criminal:
- Both parties legally own the funds in a joint account.
- There is no court order being violated yet.
- Intent is usually related to the divorce, not general theft.
Where Issues Can Arise:
- If forgery was involved to access funds.
- If a court order was already in place and ignored.
- Taking from an account the spouse was not legally on.
Real Life Example: Even though Robert felt his wife “”stole”” their savings, the police said it was a civil issue. They told him to address it in divorce court. The divorce judge later dealt with the unfair division of money.
Does Waiting to File for Divorce Hurt My Case?
Yes, Waiting is Risky: Waiting too long to file for divorce after your spouse takes the money can hurt you. The court might be less willing to help get the money back. They may feel you accepted the situation by waiting.
Court Prefers Quick Action: Judges expect you to act fast to protect your rights. If you wait months, the court might say it’s too late to fix that specific issue. Timing is very important in these cases.
Risks of Delaying Filing:
- The court might not order the money returned.
- Your spouse has more time to spend or hide the money.
- It weakens your argument that the action was unfair.
Benefits of Acting Quickly:
- Shows the court you took the issue seriously.
- Increases the chance of getting the money back or accounted for.
- Allows the court to issue protective orders sooner.
Real Life Example: Cindy’s husband emptied their account in January. She waited until July to file for divorce and complain about it. The judge said she waited too long to raise the issue effectively.
How Does the Court Decide if Money Should Be Returned?
Looking at the Whole Picture: The court looks at many factors. They consider when the money was taken relative to the divorce filing. They examine if it seemed done in secret or out of spite.
“Contemplation of Divorce”: A key idea is whether the money was taken “”in contemplation of divorce.”” This means the spouse took it because they knew divorce was coming. If so, the court sees it as trying to cheat the other spouse.
Factors Judges Consider:
- How close to the divorce filing the money was taken.
- Whether the spending was unusual or wasteful.
- If the spouse tried to hide the withdrawal.
What Helps Your Argument:
- Proof of secretive transfers or spending.
- Evidence the spouse knew divorce was imminent.
- Demonstrating this was different from normal money habits.
Real Life Example: A judge ordered money returned because emails showed the husband planned the withdrawal. He told a friend he was taking his “”share”” before filing divorce papers. This proved it was done in contemplation of divorce.
What Does “Contemplation of Divorce” Mean?
Knowing Divorce is Coming: “Contemplation of divorce” means someone acts because they expect a divorce soon. They might try to get an advantage before the legal process starts. Taking shared money is a common example.
Why It Matters to the Court: If a spouse takes money unfairly knowing divorce is likely, the court sees it differently. It’s not just accessing an account; it’s potentially trying to keep marital property unfairly. This influences how the judge divides assets.
Signs of Acting in Contemplation of Divorce:
- Taking large sums of money suddenly.
- Moving money to secret personal accounts.
- Spending lavishly on personal items or affairs.
Court’s View on Such Actions:
- Seen as an attempt to reduce the marital estate.
- Considered bad faith behavior.
- Can lead to penalties in the property division.
Real Life Example: Weeks before telling her husband she wanted a divorce, Jane withdrew $15,000. She put it in a new account under her name only. The court ruled this was done in contemplation of divorce and adjusted the asset split.
Can the Court Use Other Assets to Repay Me?
Yes, Other Assets Can Be Used: If the spouse took cash and spent it, the court can use other assets. They might give you a larger share of the house equity. Or you could get more from retirement accounts or investments.
Goal is Fair Division: The court aims for an equitable, or fair, division of all marital property. If cash was unfairly taken, they try to balance things out elsewhere. This ensures the misconduct doesn’t leave you shortchanged.
Assets Courts Might Reallocate:
- Real estate equity.
- Retirement funds (401k, IRA).
- Stocks, bonds, or mutual funds.
How Reallocation Works:
- The value of the taken money is calculated.
- Your share of other assets is increased by that amount.
- The final division reflects repayment for the lost cash.
Real Life Example: After Tom spent the joint savings, the house was the main remaining asset. The judge awarded Sarah an extra $10,000 from Tom’s share of the house sale proceeds. This repaid her for the money he wasted.
Why Is Acting Quickly So Important?
Preserving Your Rights: Acting fast is crucial to protect your financial interests. Filing for divorce quickly allows you to ask for court orders. These orders can freeze accounts and prevent further spending. Better Chance of Recovery: The sooner you act, the higher the chance the money hasn’t been spent. Quick legal action signals to the court you didn’t agree to the withdrawal. Delay can make recovery much harder, as explained in this video explanation. Key Reasons for Speed:
- Stop further money from being taken or spent.
- Get temporary court orders in place faster.
- Strengthen your legal argument for getting the money back.
Consequences of Delay:
- Money is more likely to be gone forever.
- Court may be less sympathetic to your claim.
- Can complicate the overall divorce process.
Real Life Example: When Bill emptied their account, Susan filed for divorce the next day. Her lawyer immediately got an order freezing Bill’s other accounts. This prevented him from hiding more assets during the case handled by contested divorce attorneys.
Extra Insights on Financial Protection: Taking steps before problems arise is wise if you sense trouble. Consider talking to a lawyer about options like post-nuptial agreements or separate accounts, guided by Michigan divorce laws. Understanding the property division rules in Michigan is also helpful. Thinking About Legal Steps: If your spouse has emptied an account, legal advice is key. Learn about the process of how to file for divorce in Michigan. Knowing the steps involved in the Michigan divorce process can make a stressful time easier to manage.
Frequently Asked Questions:
1. Can my spouse take money if their name isn’t on the account? No, if their name is not on the account, they legally cannot access the funds. Doing so could be considered theft.
2. What if my paycheck goes into the joint account? The court considers income deposited during the marriage as marital funds. Even if your spouse took it, you have a claim to your share.
3. Should I close the joint account myself? Talk to a lawyer before doing this. Sometimes closing it can cause other problems, but it might be a necessary step.
4. Can I get money for bills if the account is empty? You can ask the court for temporary orders for spousal support. This can provide funds while the divorce proceeds.
5. Does it matter if it was a savings or checking account? No, the rules generally apply the same way to both types of joint accounts. Access depends on whose names are listed.
6. What if we weren’t married but had a joint account? The situation is different if you weren’t married. Property division laws for unmarried couples vary greatly; consult an attorney.
7. Can my spouse be forced to pay my attorney fees? You can ask the court to order your spouse to pay your legal fees. This often happens if their bad behavior caused extra costs.
8. Is money taken before separation treated differently? Money taken shortly before or after separation, knowing divorce is likely, is often viewed similarly by the court. The timing and intent matter most.
9. What proof do I need to show the money was taken? Bank statements showing the balance before and after the withdrawal are key evidence. Account transaction histories are also important.
10. Can I freeze the account myself without a court order? Usually, one party cannot unilaterally freeze a joint account without the other’s consent or a court order. Banks require legal authority.
11. What if my spouse used the money for marital debts? If the money was used for legitimate shared debts (like mortgage or car payments), the court may view it differently than if it was wasted. Documentation is important.
12. How quickly can I get a court hearing? Emergency hearings can sometimes be scheduled quickly, within days or weeks, especially if you need funds urgently. Your attorney can advise on local court timelines.
Need Help Now?: If you are facing this scary situation, don’t wait. Protect your rights and understand your options. Contact Goldman & Associates today for help from experienced Michigan Family Law Attorneys. Call or text us at (248) 590-6600 or Schedule your free consultation online. Visit ChooseGoldman.com for more information.