How to Protect Your Money: Divorce & Joint Bank Accounts

How to Protect Your Money: Divorce & Joint Bank Accounts

July 30, 2023

Divorce brings forth many challenges, among them complex financial considerations. 

One crucial issue that surfaces is the possibility of a spouse emptying a joint account before divorce is even a topic of discussion. It can be unclear for either spouse to determine whether they even have the right to do so. Being aware of your rights and exploring options to safeguard your financial security during this delicate time is essential.

When a marriage reaches its breaking point, the division of shared assets can become contentious. Once created to streamline financial transactions within a partnership, a joint account can quickly become a major source of conflict. The fear of funds being depleted by a spouse can cause significant stress and raise questions about protecting your financial interests.

Today, we shed light on the complex issue of joint accounts in divorce proceedings, addressing legal and financial considerations, offering strategies, and providing practical steps to minimize the chances of your spouse emptying a joint account. Equipping yourself with knowledge and a clear understanding of available options will give you confidence in navigating this challenging situation and preserving your emotional and economic stability.

Can I withdraw money from a joint account before getting a divorce?

While it is true that either spouse can take money out of a joint account before divorce is on the table, the answer may vary based on your specific circumstances and location. It becomes essential to consider some important factors, especially if it's a pre-divorce withdrawal versus one made during the divorce process. Being mindful of these factors will allow you to navigate your financial situation effectively during this challenging time.

Ownership and Access Rights

Joint accounts typically grant both spouses equal ownership and access to the funds. However, the manner in which the names are listed on the account can make a significant distinction. For instance, if the account is in the names of “John or Mary” or “John and Mary,” the access and ability to withdraw funds would differ. In the former case, either John or Mary can withdraw money individually, while in the latter case, permission from both spouses would be required to withdraw.

Legal Restraints During the Divorce Process

While joint account holders generally have the right to withdraw funds, it is important to be aware of any legal restrictions that may come into play. During divorce proceedings, certain circumstances may arise where temporary restraining orders or court-issued injunctions are put in place. These measures can prevent either party from making significant financial changes, including withdrawing funds from joint accounts.

Property Division Rules

In several states, including California, divorce operates under the principle of community property. This legal framework entails dividing marital assets and debts equally between spouses. Consequently, withdrawing a substantial amount of money from a joint account before initiating the divorce process could be deemed a violation of community property laws, potentially leading to legal consequences.

Community Property States

  • Arizona
  • California
  • Idaho
  • Louisiana
  • Nevada
  • New Mexico
  • Texas
  • Washington
  • Wisconsin

In all cases, it is crucial to consult with a divorce attorney to ensure that your actions align with the state's specific guidelines and protect your rights during the distribution of assets.

Can one spouse freeze a joint bank account?

In most cases, either account holder, regardless of marital status, can initiate a freeze on a joint account. However, the ability to freeze or place a hold on a joint account can vary depending on the bank's policies.

To place a hold on the account, you may need to contact your bank and provide the account number along with some identifying information. Some banks may require you to follow up with a written request to keep the account frozen until further notice. The bank will keep this letter on record in case of any disputes regarding the account and its funds.

To lift the freeze, some banks may require the agreement of all account holders, while others may allow any single account holder to do so. If only one account holder lifts it, the other can reinstate it. However, if there are repeated holds and lifts on the account, the bank may impose restrictions on its usage, potentially limiting access completely.

However, it is important to note that unilaterally freezing a joint account without a valid reason or proper legal justification may have consequences. As a courtesy, a spouse should also inform the other spouse about the decision to place a hold on the account. This communication can facilitate transparency and avoid misunderstandings during what may already be a difficult and emotional time.

Can I remove my spouse from a joint account during divorce?

In general, it is not possible to remove a spouse from a joint checking account without their consent. State laws and bank policies typically prohibit one account holder from unilaterally removing the other person from a joint account, as stated by the Consumer Financial Protection Bureau. Consent from all account holders or legal intervention is typically required for any changes to joint accounts. However, it’s prudent to check with your bank regarding their specific policies.

Can I remove my name from a joint account during a divorce?

Yes, it is possible to remove your name from a joint account during divorce proceedings. While that option exists, it is crucial to recognize that joint financial obligations and outstanding debts may still need to be addressed. This means that even if your name is removed from the account, you might still be responsible for certain financial obligations tied to it.

It is advisable to consult with a Certified Divorce Financial Analyst® (CDFA®) who can provide personalized financial guidance based on your specific circumstances and ensure compliance with the requirements of your financial institution and your state.

How are bank accounts split in a divorce?

In California and other common property states, bank accounts (and liabilities) acquired during the marriage are generally considered to be shared equally between both parties. Specifically, these assets are subject to equal division between spouses upon divorce, regardless of whether they are joint or individual accounts held by either spouse.

During divorce proceedings, both parties must disclose all financial assets, including bank accounts. This involves providing bank statements and other relevant documentation to ensure transparency and facilitate a fair division of bank accounts.

In some cases, divorcing couples can negotiate and reach a mutually acceptable agreement on the division of bank accounts. This may involve determining how to allocate funds from joint accounts and handle individual accounts. If spouses cannot agree on the division of bank accounts, California family courts will intervene and make a determination based on community property laws and other relevant factors. These factors may include each spouse's financial needs, contributions to the marriage, and any prenuptial or postnuptial agreements in place.

It is important to note that the information provided above serves as general guidance, and the specific outcome of bank account division in a divorce can vary depending on the unique circumstances of each case. There are various factors that can impact the division of bank accounts, including the specific details of the marriage and finances, and any agreements or court orders in place. You will need to consult with a legal professional to advise on matters that could impact your case.

During divorce proceedings, both parties must disclose all financial assets, including bank accounts

Are separate bank accounts marital property?

In general, separate bank accounts are not considered marital property. These accounts are typically held individually by one spouse, and as long as they remain separate from marital funds, they maintain their status as separate property owned solely by the account holder.

However, there are instances where separate property can become community property. For example, if funds from a joint account are transferred into an individual account or if separate funds are used for marital expenses, a portion of the separate account may be subject to division as community property. There are other instances in which interest earned on separate assets during a marriage can be considered marital property, such as real estate. It is prudent to discuss these matters with a Certified Divorce Financial Analyst® (CDFA®) to properly calculate each party’s interest.

California follows the community property principle, which means that assets acquired during the marriage are generally considered community property and subject to equal division between spouses. However, separate property, including separate bank accounts, is not subject to division unless it has been
commingled into community property.

How to protect your money in a divorce

Divorce proceedings can have significant financial implications, making it crucial to protect your money and financial assets. Here are some strategies to consider:

  1. Gather and Organize Financial Documentation: Compile all relevant financial documents, including bank statements, tax returns, investment portfolios, and property records. Keeping accurate records will ensure an accurate assessment of your finances during the divorce.

  2. Consult with a Certified Divorce Financial Analyst®: A CDFA® can provide personalized advice based on your specific circumstances and assist in protecting your financial interests throughout the divorce process.

  3. Open Individual Bank Accounts: If you currently have joint accounts with your spouse, consider opening individual bank accounts to separate your finances. Ensure that any direct deposits, automatic payments, or other financial transactions are redirected to your new individual account.

  4. Limit Funds in Joint Accounts: To minimize potential losses, keep only enough money in the joint account to cover essential expenses and bills. Consider moving any extra funds to an account in your own name.

  5. Maintain Online Access: Ensure you have online access to your joint account so you can monitor the balance frequently. While having online banking will not prevent your spouse from emptying the account, it will allow you to keep track of transactions and detect any unusual activity.

  6. Consider a Postnuptial Agreement: If possible, work with your spouse to establish a postnuptial agreement that outlines the division of assets and financial responsibilities. This legally binding agreement can protect your financial interests and provide clarity during the divorce process.

  7. Request a Freeze on Joint Bank Accounts: If you have concerns about your spouse potentially emptying the joint account, you can request a freeze on the account. Some banks may require the agreement of all account holders, while others may allow any single account holder to initiate the hold. You can also seek legal intervention by asking the courts to issue a freeze order on the joint accounts. Do keep in mind that though locking the account can prevent additional transactions, it may not necessarily resolve issues related to the distribution of assets or resolve disputes over the account's funds.

How to protect your money in a divorce

Work with a Certified Divorce Financial Analyst®

Protecting your joint account in a divorce is as important as safeguarding any other financial asset. Gain insights into your options and minimize the risk of economic loss with professional guidance.

When dealing with complex matters such as joint accounts and divorce, it is essential to consult a Certified Divorce Financial Analyst® (CDFA®). With their expertise, a CDFA® will assist you in navigating the complexities of divorce, securing your financial future, and optimizing the benefits associated with your joint account.

With a CDFA®, you can trust that your interests are safeguarded throughout the divorce process. Gain clarity, confidence, and informed decision-making as you move forward.

Have any questions? Unsure about your next steps? Book a consultation today.

Book a Call with Victoria Kirilloff The Divorce Financial Analyst