Technically Speaking…
If your divorce has already been finalized, and you have a joint account that’s still open, you will need to look at your decree to figure out how the funds in that account were awarded. If there is no mention of the account in your decree, you may need to speak with an attorney. Don’t assume that the money in that account is “free money,” or that your spouse won’t find out if you clean out the account. If you are still in the process of divorcing, you probably can just take all the money out of the joint accounts since it’s legally your money—but that doesn’t mean that you should do that, as it’s also your spouse’s money. Furthermore, who gets the money is not a matter of who cleans out the account first: it’s not like you can just take the money and not give your spouse any of it ever. Your spouse will likely be awarded some portion of the money at some point during the divorce process. While it’s not necessarily advisable to just leave all your money in there for your spouse to take, you should consider speaking with an attorney before taking large sums of money out of an account.
What if It’s My Money?
It will depend on what you mean by “my money.” If you’re referring to inheritance or funds that would be considered separate from the marital estate, then you are more likely to have the ability to completely clear out the account without repercussion and without being ordered to pay your spouse back. However, you should always consult an attorney before you completely clear out an account, even if it is solely your money. Any funds earned after the marriage took place (meaning commissions, paychecks, bonuses, etc.) would be considered to be marital funds. This means that your spouse likely has an equal interest in those funds, even if you earned the money all by yourself. While you may be able to remove them from the account, you will likely be ordered to return some of the money to your spouse.
What if I Spend it All?
Do not remove all the money from your joint account and spend it before your spouse can get it back. If you took money from a joint account and lost it at a casino, there wouldn’t be anything that would bring that money back. However, that doesn’t mean that there wouldn’t be any consequences for you. While a judge obviously wouldn’t be able to bring back money that was already spent, a judge may award assets to your ex in order to offset the portion of the assets that you brought to Vegas—and didn’t return with. Such behavior may also motivate a judge to deal more harshly with you than compared to your ex. If you have already been ordered to pay the money back to your ex, but you spent it all after the order, there may be even harsher consequences, such as jail time.
Will I Go to Jail?
It is unlikely that you will go to jail simply from removing money from an account that your name is on—after all, you’re free to do that as it’s your money. However, there may be circumstances to be aware of. For example, if there was an order put in place that prevented you from completely cutting your spouse off financially, you may not be able to just take everything and never give them anything. In some states, there may be an injunction that’s automatically entered that states neither party can liquidate or dissipate the marital estate except for in certain situations. If you are ordered to pay your ex money, you do need to follow the court order. Failure to do so could result in jail time. If you are unable to follow the court order, you will need to consult your attorney and notify the court as soon as possible. In such a situation, the worst thing you could do is nothing at all.
What You Can Do
While it’s not necessarily a good idea to completely clean out your accounts in preparation for the divorce process, it might also be a bad idea for you to just leave the money sitting there for your spouse to take. In most cases, speaking with an attorney regarding the money that you’re able to remove will be the best way to protect yourself. If your ex has completely removed all the money from your joint account, don’t panic. Assuming the funds were marital property, it is unlikely that they’d be able to keep all of it forever and never give you another dime. As much as it may be difficult to do, it is important to stay calm and work with your attorney on creating solutions to resolve the issue.
When You’re Filing for Divorce
If you’re filing for divorce, CoilLaw is here for you. Matters such as cleaning out a checking account that’s considered to be joint, can be very complicated. In most situations, it’s best to consult an attorney sooner rather than later, particularly before you do anything rash. If you’re going through a divorce and you need customized legal advice, contact CoilLaw today to schedule your initial consultation.
