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My Ex Emptied Our Bank Account During Divorce – What Next?

Michael Tierney
June 29, 2022

Divorce is painful enough since it means the life you built with the person you loved is changing forever. However, it becomes even more painful and stressful when they do something underhanded and petty to get ahead. Unfortunately, many divorces tend to regress into petty squabbles and underhanded tactics due to some lingering spite from one or both parties. While the legal system tries to manage this issue, there is only so much it can do to protect you from this behavior. One of the worst offenses a spouse can inflict is emptying your joint bank account in the middle of the divorce proceedings.

There are few situations as disheartening as opening your banking application to discover the joint account you shared with your spouse is devoid of funds. While this might seem like something that would only happen in a legal drama series, it is more common than people realize. When it does happen, it can leave you feeling a little aimless since this is such a huge betrayal from someone you love.

However, just because your soon-to-be-ex has gone through with an underhanded tactic does not mean you cannot fight back.

This article will provide insight into what can be done when your spouse empties your joint bank account while the divorce proceedings are ongoing.

Understand Marital Property

Marital property is one of the most important things to learn about when your spouse empties your joint account. When you marry someone, you agree to share more than a life, but particular assets as well. These shared resources and assets are known as marital property since they become useable by you and your spouse.

Solution Marital property accounts for most of the resources you and your spouse have available, both in liquid funds and physical resources. Knowing what counts as marital property will give you a better idea of what you can protect from a more manipulative and underhanded spouse until the divorce is finalized.

Marital property includes:

  • Liquid funds in personal and joint bank accounts.
  • Retirement funds set aside for the future.
  • The house, apartment, condominium, or another domicile you share.
  • Any vehicles under either of your names.

Unless previously allocated via a prenuptial agreement, these assets are considered shared marital property to be divided equitably between you and your spouse in the case of divorce. While marital property usually only accounts for assets acquired during the marriage, leaving property and assets you owned before the marriage in your name, a joint account is almost always considered marital property.

Marital Property Assets

This means the funds within that account are meant to be split between the two of you rather than one of you walking away with all of it. For this reason, allowing your spouse to get away with emptying the account is not an option.

That said, most banks make it impossible for one party of a joint account to make large withdrawals of this nature without both parties being aware and consenting to it. However, the option to authorize one-sided withdrawals can be added when the account is made. The chances are that you trusted your spouse and authorized one-party withdrawals, which is understandable. Unfortunately, your spouse might choose to take advantage of this if you are getting divorced.

Fortunately, most divorce courts are likely to agree with the sentiment that a preemptive draining of a joint account is underhanded. This means you can seek justice if your spouse commits this act. Most states take preemptive measures to dissuade less savory individuals from attempting to drain the account.

Ex Parte Orders

You might not be familiar with an ex parte order, but they often play a role in divorce proceedings. For the most part, an ex parte order is a fancy way to refer to a temporary restraining order (TRO).

Solution Ex parte orders are frequently used outside divorce court when an individual feels threatened and wants to keep the offender at a distance.

However, the role of these orders when going through a divorce is a little different.

Typically, these orders are only issued in divorce proceedings where one or both parties are extremely hostile or outright belligerent. It is designed to protect the parties from unsolicited interactions that might deteriorate into conflict.

Ex Parte Order

However, ex parte orders serve a more practical role in these cases. When dealing with a divorce case where at least one party is openly hostile, it is not uncommon for them to attempt something underhanded like draining a bank account. This is why ex parte orders can limit the range of financial transactions either party is capable of executing. The restrictions imposed by an ex parte order include:

  • The sale or transfer of funds or other assets from a jointly held account.
  • The sale or transfer of funds or other assets from an independently held account.
  • Applying for loans that would impose significant debt on one or more parties.
  • Adding or removing beneficiaries from any life insurance policies.
  • Adding or removing beneficiaries from any retirement funds.
  • Adding or removing dependents from any health insurance policies.
  • Terminating existing health insurance policies where you or your spouse share coverage.

These restrictions are mainly supposed to prevent one party from hiding assets. However, they also help prevent either party from draining a joint account without your consent. A violation of the order is illegal and will lead to criminal charges against the offender. This includes you or your spouse, depending on who performed the transfer. These orders are so useful for maintaining the peace that most states apply them by default to divorce cases to prevent unsavory behavior.

Solution Unfortunately, not every state automatically issues an ex parte order during divorce proceedings.

However, in these states, it is possible to request an ex parte order be issued, though the one making the request will need to prove that it is necessary. While you are not guaranteed to be granted an ex parte order, securing one is extremely beneficial to protecting assets, and they are very difficult to fight.

That said, an ex parte order is a preventative measure and will not be of any help if your spouse has already drained the account. If you fear that your spouse plans on draining the account and an ex parte order is not standard, be sure to request an order specifically.

If the funds have already been drained, you can still take action to correct the affront. However, you will not be able to take such action alone.

Report it to the Judge

Solution You should immediately inform your legal counsel if your spouse has drained a joint account without your permission.

While it might seem like a huge issue, your attorney will be able to guide you through what comes next and how your spouse's actions will work in your favor. When divorce proceedings are ongoing, it is not legal to take possession of marital property until it has been divided per the judge's definition of equitable. If your spouse drains a joint account that is considered marital property, your attorney will inform the judge, and they will issue an order to your spouse.

The judge will often demand that your spouse return the funds to the joint account. This will be applicable even if the money has been spent, and your spouse will be responsible for repaying your share of the sum through whatever means are available. If your spouse drains the account and spends it solely to deprive you of the funds, the judge will likely issue an order that the funds be repaid via alimony payments. Alimony, or spousal support, is meant to provide the lower-income spouse with financial aid until they can get back on their feet. If the lower-income spouse attempted something like this, they would likely be the ones paying alimony instead.

However, sometimes the judge will issue more severe orders that actively penalize your spouse for defying the laws of divorce proceedings. If the funds are drained, the judge will likely force your spouse to compensate by allocating other assets in your favor and imposing fines on your spouse.

Reporting Actions to Judge

The main repercussions of draining a joint account in the middle of divorce proceedings include:

  • Repaying the funds through alimony payments or other financial resources.
  • Subtracting the difference from the alimony payments the spouse would have received.
  • Requiring the offending spouse to cover a portion of the victim's legal expenses.
  • Compensate by assigning larger shares of physical assets such as vehicles, artwork, etc., to the victim.
  • Impose sanctions and fines costing significant amounts of money.

A judge will not be amused or impressed by underhanded tactics during divorce proceedings and is liable to punish the offending spouse. One of the best ways to proceed when your spouse drains the account is to inform your attorney, who will inform the judge so they can enforce the proper punishment. However, you will also need to be careful if you intend to withdraw funds from another account.

Solution Your attorney can even use the draining of a joint account to negotiate preferable resolutions to other parts of the divorce.

Your attorney can petition the judge to leverage the funds taken by your spouse as an advance on alimony payments, reducing the amount of time and money you will have to dedicate to paying. They can also use it to negotiate your role as the custodial parent of any children you have, which can alter child support agreements.

The judge enforces the laws that require equitable distribution of shared assets. Several factors allow them to determine what is equitable. However, actions such as draining a joint account can alter those factors. That said, it might be worth knowing what is considered when an equitable distribution is being calculated.

What Determines Equitable Distribution?

Equitable distribution of assets is a tool that divorce courts use to ensure that both parties of the marriage can walk away without being rendered destitute. However, an equitable division does not always mean a 50/50 split of assets.

Distributing Marriage Assets

The judge will consider several factors of your life and your spouse when calculating the equitable division of assets. These same details tend to play a role in how alimony payments are calculated, but for now, the focus is on how they impact the division of assets post-divorce.

The main details a judge will consider are:

  • The duration of the marriage.
  • The age of each spouse.
  • The physical and mental state of each spouse.
  • The standard of living both spouses had while married.
  • The resources and time required for each spouse to return to that standard of living.
  • The property and income each spouse provided when the marriage began.
  • All provisions outlined in the prenuptial agreement (if one exists).
  • Any delays in professional or educational progression caused by marriage (i.e., caring for children).
  • The financial contributions of each spouse to the educational or professional advancement of the other spouse.
  • The needs of the spouse who is the custodial parent of any children from the marriage.
  • The debts and liabilities of each spouse.

There are more details about what a judge will consider when dividing resources. However, these are the more significant factors that affect the outcome. These factors can quickly be outweighed by the unauthorized draining of a joint account. It also weakens their position to win custody of any children you share. Of course, divorce facts are complicated for those untrained in the law to navigate independently. Fortunately, finding information on divorce law is easier than ever.

Learn the Law

Divorce is unpleasant and messy, even more so when your spouse does something underhanded like draining a joint account. While you are likely more concerned about the dissolution of your marriage, it is important to ensure you do not let an uncaring spouse walk all over you. We know that this is a difficult time for you and that you probably wish things were different. However, knowing what can happen if your spouse drains your joint account can protect you from malicious intent.

Divorce Law

While divorce law is too complicated for the average citizen to comprehend fully, the essential information is easily accessible nowadays.

Information once locked away in legal textbooks is now readily accessible online. While only an attorney can guide you on specific circumstances in your state or situation, having a general idea can give you an advantage.

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Written By:
Michael Tierney

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