We have been married for about 10 years and now are planing to file for divorce. During our marriage each of us opened a personal checking account and we had one joint account. All my salary (up to this date) get deposited into our joint account from which all the bills are paid from. I was able to save some money and put them on my personal checking account. Additionally, my parents were giving me some money in cash that I also put into personal checking account.
Question: if I withdraw all the money in cash from my personal checking account and close it now (before the divorce starts) can my spouse or the judge find that out and make me owe half of those funds to my spouse?
The short answer is yes. Title is irrelevant in the division of marital assets. All assets accumulated during the marriage are marital, unless proven to be separate property. Your paycheck was marital. The deposit of those paychecks into an account in just your name means that the funds in that account were marital.
It is possible to claim that the funds given to you by your parents and deposited into that account were separate property. However, you would have the burden of proving, with a paper trail, that those funds were gifted to you and deposited into the account and that they remiained in that account. It is possible that your spouse's attorney will clam that since you commingled the gifted money with the marital money that it all became marital money. That would be a valid, and likely a strong argument.
Your spouse's attorney will likely request "discovery", which encompasses exchanging and tracing and tracking marital assets. It is highly unlikey that you will be able to remove those funds and keep that information from your spouse and the other attorney.
Family Law Attorney
In the context of the divorce proceeding, your spouse will be entitled to discovery. That means that he will be able to obtain all your account statements to determine what assets and/or accounts you have. Your spouse will be entitled to 50% of the funds that you placed in your personal checking account up through date of commencement of the divorce action. If you can trace the funds given to you by your parents, then those funds would be considered separate.
It depends. What are you doing with the money?
You can't do something improper wih marital assets - but not all of the money would seem to fall into that classification.
You should discuss your situation in detail with a local divorce attorney before taking any action!
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I agree with the prior postings, and would add that in New York we have "equitable distribution," which means that the Judge is charged with determining what's "fair" in each case. That said, usually liquid assets are dividable 50-50%. If you withdraw the funds now, it's easy to trace through the bank account statement. That said, under certain circumstances, you may be able to pay off joint debt now with those joint funds. To determine best how to proceed, I'd highly suggest you schedule a consultation with a NYC Divorce lawyer.
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