Authored By: Christopher Pearsall, RI Divorce Attorney
a.k.a. " The Rhode Island Divorce Coach ℠ "
If you are going through a divorce in the Rhode Island Family Court system then the bank account(s) you have either jointly or individually with your spouse may be one of the first subjects that is addressed whether you like it or not.
Both husbands and wives who are contemplating divorce from their spouse will generally have as one of their main concerns the bank accounts. This is for any number of reasons. The first reason is because it is likely to be the primary source of any immediately liquid financial resources to pay a divorce attorney to get your through the family court process. The second reason may be because it is this source of funds that is used for the payment of marital and/or family obligations and that without those funds the bills simply won't get paid or the children won't have food to eat. The third reason may be that one spouse is simply afraid that the other spouse is going to lock them out of the bank account and/or take "their half" of the money and it will never be seen again.
Perhaps one of the most often questions that is presented in the course of my divorce consultations with prospective clients is this, "The account is in both or our names. I'm worried my husband (or wife) will file for divorce and take all the money. What should I do?"
Technically speaking, before the divorce proceeding is filed the money belongs to both persons on a joint bank account equally. In otherwords, you both have a 100% right to the monies in that account (absent other extenuating circumstances that may provide an argument to the contrary). Therefore, if either of you take all the monies out of the bank, you have not committed any wrongdoing. That is not to say, however, that you then have a right to all of that money or that you will not have to account for it later.
Rhode Island laws regarding divorce follow the principle of equitable distribution. Although this does not always mean equal distribution between the parties, this is generally where most judges start in a divorce case. Assuming that this is where most judges will start, it is not unusual nor unfair that a divorce lawyer will counsel his or her client to remove only half of the monies in a joint account to protected himself or herself from being divested of all the monies by the other spouse. This, however, should come with a caveat as well. A divorce lawyer giving this advice is usually NOT saying that when you remove half of the monies in the marital bank account that you are entitled to keep those funds, or that you will not have to account for them or that you won't have to give all or a portion of those monies back or provide for an offset for those funds to settle your case.
Once the divorce case is filed, the bank accounts in the name of either you or your spouse are essentially to be considered "frozen" with the exception of the payment of those costs and expenses that are typically paid from those funds on a regular basis. A divorce attorney therefore may give you this advice not to give you a financial windfall but rather as a protective measure. There are instances, however, when the money may normally be used without any adverse action by the family court.
You should always consult your divorce lawyer regarding what you can and cannot do with the monies you withdraw from any bank account even before the filing of divorce. Though no orders truly control what you can and cannot do with monies you withdraw that you are lawfully entitled to, the opposing party can use your spending conduct against you with some judges and do some permanent damage to your case by tipping the judge in favor of your spouse.