Finding a joint bank account empty before divorce can leave you worried about paying bills and recovering your share of the money. In California, most property gained during marriage is community property. However, the source of the money and other facts can affect how it is divided.
Whether a withdrawal creates a legal problem can depend on when it happened, why the money was taken and how it was used.
Does it matter when your spouse withdraws the money?
California generally allows either spouse to manage community property such as money in a bank account. Even so, spouses have fiduciary duties, which means they must deal fairly with each other and share important financial information.
If a withdrawal harms your share of community property, the court may look at whether your spouse violated those duties. The court may order an accounting, which shows where the money went. If your spouse transferred or hid property in violation of their fiduciary duties, the court can award you 50% of its value plus attorney fees. A breach involving fraud, oppression or malice can lead to an award of 100% of the property’s value.
If your spouse takes the money before either of you files for divorce, automatic temporary restraining orders (ATROs) do not yet apply, but your fiduciary duties to each other still do. ATROs bind the other spouse once that spouse is personally served with the petition and summons or accepts service in writing. ATROs generally bar spouses from transferring or getting rid of property without written consent or a court order. Exceptions include normal business, necessary living expenses and reasonable attorney fees for the divorce.
What records can help trace the money?
Financial records can help explain what happened to the account. Useful information may include:
- Bank statements showing the balance before and after the withdrawal
- Transaction records showing where the money went
- Account alerts or transfer confirmations
- Texts or emails discussing the withdrawal
- Receipts or records showing how the money was spent
Organizing this information now can make it easier to address questions about the withdrawal as the divorce moves forward.
Getting clarity about missing money
Missing money can create uncertainty about what you will have available during divorce. Keeping bank statements and transfer records can help show what happened. An attorney can help you determine which money is community property, whether fiduciary duties or ATROs apply and what options may help protect your share.