As a New Jersey divorce attorney, I am regularly asked the question: "Can I remove money from a joint account at the beginning of our divorce case?"
Answer: "Yes. But unless we are talking about a relatively small amount of money, don't."
Don't touch large accounts, such as retirement accounts. These should be left alone until you have a judge's permission to take funds from them.
Indeed, they are often restrained from being touched at the beginning of many cases. You cannot remove funds from any joint account if a judge has so ordered or if you have so agreed.
But if you have a joint checking account with your spouse, and if it has not been restrained from dissipation by order or agreement, and if you have say $20,000.00 in it, technically the entire $20,000.00 is his… and technically the entire $20,000.00 is also hers.
That's because it is a joint asset. Either one of you can go in and spend it all right now.
In a New Jersey divorce, one way to really offend your spouse (and there are many) would be to go in and clean out the whole checking account, because the message that you are telegraphing to your spouse is "I took everything and there is nothing that you can do about it."
Now obviously that is not going to go over well with your spouse or pretty much anybody else's spouse so well.
Also, checks may begin to bounce.
In addition, and perhaps most significant, the judge in your case has the power to order you to return any money that you take if the judge feels that it was inappropriate for you to remove the funds without either your spouse's consent or consent from the Court.
Frankly, the best thing to do (normally) is for both sides to avoid touching anything. You just leave it there until the end of the case and then it will likely be divided 50/50, so if there's $20,000.00 in there now and if there is $20,000.00 in there day you get divorced, in most cases (although not in all cases) you will each get $10,000.00, exactly 50 percent.
But if you really need money, and if your spouse is supposed to be supporting you but has stopped doing so or has cut back support, the third option is to take exactly half.
In this situation, what you are telegraphing to your spouse is "Hey, this is my money, too, and I'm going to choose to use my share of it, but I'm also being fair with you because I'm not touching a penny of your half. I've taken my half; you can do whatever you want with your half."
By doing that you are empowering yourself by giving yourself the ability to use those funds that are legitimately yours.
You are also empowering yourself in another way because you are showing your spouse that you are standing up for your rights while simultaneously being respectful of your spouse's rights.
In my experience in an increasingly number of divorce cases in NJ, while the judge has the power to order you to return any money that you unilaterally remove, if we are speaking about a relatively small amount and if you take only half leaving half for the other spouse, under reasonable circumstances, most judges will not disturb that result.
This will free up enough money to keep you supported while you seek more financial relief from the judge.
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Steven J. Kaplan, Esq.
Specializing In Divorce
In Monmouth County
5 Professional Circle
Colts Neck, NJ. 07722
www.KaplanDivorce.com
(732) 845-9010