Moving “Family” Money: An Irksome Question
As my colleague Eric Solotoff of the New Jersey Family Law Blog noted in a recent post the 2024 Divorce Season officially launched on January 2 as many unhappy couples defer taking action until the holidays are over and folks go back to work or school.
That means lots of initial interviews and discussions revolving around “Where to start.” One of the difficult questions lawyers face is whether a spouse should be moving money from joint accounts to a solo account. This question is especially challenging where one spouse is financially dependent and/or without material income of his/her own.
There are lots of strategies associated with when to file or to notify the other spouse of the plan to dissolve a marriage. But access to funds is often a pivotal point to this discussion. Two such strategies set a decidedly bad tone to the divorce process. The first is the act of having your spouse find out about your intentions by way of a visit from your local sheriff or constable. To the person who gets such a visit, you are telegraphing that your divorce is going to be both public and hostile. The second way to start things badly is for your spouse to appear at an ATM machine or the local grocery store and learn that there is no money in the bank account which formerly held part of the nest egg.
Just about every lawyer counsels against this as the way to start the process. But then we face the client’s own anxiety. “Can my spouse take all the money out of our joint accounts?” And typically, the answer to that is affirmative, meaning that your client’s retainer check may bounce or they will be the one standing at the register in Target when the cashier says the transaction can’t go through.
So, what is the smart thing to do? There is no universally correct answer, but the advice lawyers typically give is to take half of the balance and immediately notify your spouse that you have done so and why (i.e., I am filing to dissolve the marriage). Usually this prevents checks from bouncing and at least seems “fair” even when the news comes as a surprise. It is equally important that when you take this action, your notice to your spouse includes information about who will be representing you and that you want to begin the process constructively but could not risk being without funds until courts decide support. Clients sometimes shirk these responsibilities because they secretly want to start matters off with a kind of sneak attack. The trouble with sneak attacks or uncounseled unilateral behavior is that it begets a counterattack of some kind, and it takes weeks or months to move out of war mode. In the meantime, the emotional and financial cost is usually disproportionate to any short-term benefits.
As lawyers there are times when we fully understand why you want the sneak attack. Even though your accounts are joint, your spouse may be one of those who exercises absolute control and dictates when and how you may spend money. That’s a power trip and there is often a need to show such a person that you also have rights and powers. But, again, when the mortgage payment bounces or your spouse is at dinner with clients and his debit card won’t work, the reaction is rarely one of contrition for being so controlling with money during the marriage. More likely is your discovery that your tires are flat or your engagement ring is missing.
Your lawyer may also have insight into how your local courts will respond to unilateral taking. Many judges have harsh views against it, often because they have never been on the end of the stick where they represented a dependent spouse who had sixty items in her grocery bag only to find out that the “family” account is down to $5.00 by reason of an unknown withdrawal.
It’s dicey but the subject merits consideration as a separation unfolds. One last point as January 15 is just around the corner. That’s when quarterly estimated payments are due to tax authorities like IRS where folks are self-employed. Family checking accounts are often robust at this time because some big checks are about to be written to Uncle Sam and his state and local cousins. If you are taking a half or any substantial amount out of such account, be aware that your half may cause Uncle’s check to bounce. Never a good idea.
