California is a community property state, so most marital property is considered community property, unless specifically designated as seperate property, and remains that way until it is divided by the court. If you are in the process of getting a divorce and need to access money in a joint checking or savings account, there are two competing priorities to weigh:
- You are responsible to your spouse for what you do with the money.
- You have every right to use that money as if it were your own.
You have a special responsibility to your spouse not to interfere with his or her use of community property. In practice, this means that if you use money from a joint checking account to pay your personal expenses, you must at least tell your spouse you have spent the money. If you do not tell your spouse, you may be violating the laws in your state.
What If the Court Issues a Retraining Order or Injunction on Bank Withdrawals?
In order to preserve the community assets until they can be divided, a California court may issue a restraining order prohibiting withdrawals from an account. This order may be issued by the Court at the request of one of the spouses or on the Court's own motion. It is illegal for anyone subject to a restraining order to use any money from the joint checking account until the Court modifies the restraining order.
What Happens if I Spend More Than Half the Money in a Joint Checking Account?
Even though you have a property right in the money, you are not free to spend all the money in the checking account. The money likely has not yet been divided, but it will be when the divorce is finalized. Once it is, half of it may belong to your spouse. If you spend money that ultimately belongs to your spouse, you will have to repay your spouse that money. If you intentionally waste the money, you may have to pay a penalty and even some of your spouse's attorney's fees.
What Happens If I Deposit Money Into Our Joint Account After We Are Separated?
Money earned after separation is generally considered that spouse's separate property. But if you place the money into a joint checking account without keeping very clear records of where the money came from, it may become community property.
Should I Contact a Family Lawyer Before Spending Money from Our Joint Checking Account?
An experienced California family lawyer can reduce the stress and complexity of a divorce by explaining your legal rights and obligations in managing community property.