You're contemplating divorce. You want your rights to be protected. You decide to hire an attorney. You find the specific lawyer you want to represent you but you need a $3,500 retainer.
There is $5,000 in your joint marital bank account. Meaning that both of your names are on the account and both of you have the right to deposit and withdraw funds or write checks drawn on the account as signatories.
Do you take the $3,500 out to hire the lawyer or not?
The question isn't as simple as one might think because as any person with common sense knows . . . for every action there is a reaction . . . and possible repercussions.
There are only three true answers to the question, but each has its own considerations. The three answers are, of course,
1. You take the $3,500.
2. You don't take the $3,500.
3. You take a portion of the $3,500 and try to work out an arrangement with your chosen divorce lawyer for the remaining portion.
Under Rhode Island law, you and your spouse equally own the money in that account and you each have an equal right to use the monies in that bank account. Therefore, technically you may take the $3,500 and be well within your legal rights.
Yet when you get into the realm of the Rhode Island Family Court system as a divorce participant it is not so much about what you may legally entitled to do as it is what is reasonable and equitable to do under the circumstances.
Let's assume you take the $3,500 and file for divorce by giving it as a retainer to your chosen Rhode Island Divorce lawyer. Legally you are within your rights, but what if that same account pays for the mortgage and as a result of your decision the mortgage can't be paid, you and your spouse incur late fees and the credit for you and/or your spouse is damaged as a result. A Rhode Island Family Court judge might not consider that your choice to take the $3,500 was fair, equitable or prudent under the circumstances in light of the results.
So what might happen? The Rhode Island family court judge might hold you responsible for the mortgage payment and any late fees and possibly even the resulting damage to your spouse's credit.
What if you are a joint holder on the bank account but you contributed only about $800 to the $5,000 that is in the account?
Do you think a Rhode Island Family Court Judge would consider it equitable for you to remove $3,500 from the joint bank account to divorce the spouse who put the majority of the money into that account?
Is it possible the judge that is assigned to your Rhode Island Divorce matter might see you as having removed $2,700 of your spouse's money in order for you to divorce him or her?
This is often one of the most crucial and one of the earliest decisions a spouse must make in the divorce process and it is one that should be thought about carefully because it can make a difference.
1) What else is this money normally used on that I am considering taking?
2) How much have I contributed to the money I am considering taking?
3) Is the amount I am taking more than half of what is in the account?
4) Will taking this money prevent the payment of usual and necessary expenses?
5) What damage, if any, will taking this money cause to me, my spouse, our children, our assets?
6) Could I be held responsible for this money once the divorce is filed?
All actions have consequences. A good Rhode Island Divorce lawyer can counsel you best on whether or not it's best to . . . "take it or leave it."
NOTE: The postings on this website are NOT legal advice, DO NOT create an attorney/client relationship and are NOT a substitute for a detailed consultation with an attorney experienced in the state where you have your legal issue. This site is presented for the convenience of the internet public.
* The Rhode Island Supreme Court licenses all lawyers in the general practice of law and has no procedure for recognition of specialty in any area of law.