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Leaving your husband can take a lot of planning, but sometimes emotion gets in the way. If you've left only to realize that the only money you have access to is in a joint account with your spouse, you're legally entitled to a portion of it. How much you're entitled to depends on the laws in your state and the account's purpose.
If you live in a community property state, you're probably safe in assuming that half the money in the joint account is yours. Community property states divide marital assets 50/50 in a divorce. Unfortunately, only nine states are community property states. The remaining 41 divide marital property according to equitable distribution laws. This means that a divorce court can stray from a 50/50 split if a judge feels the factors involved in a particular marriage warrant it. If you live in one of these states, you can use the joint account, but exactly how much of the account you're entitled to can fall into a gray area until your divorce is final.
Another factor involved in using a joint account is what you're spending the money on. This is particularly true if you take more than what a court might consider your share. If you exceed this amount, but you’re using the money to meet legitimate and necessary living expenses, courts typically take this into consideration when you divorce. However, if you go on a spending spree in a deliberate attempt to deprive your husband of the money, there will probably be repercussions.
Part of the divorce process involves accounting for all assets, property and debts accumulated during your marriage. Whether you live in a community property state or an equitable distribution state, the court will eventually apportion a percentage of all these things between you and your spouse. If the judge awards you 60 percent of all marital property, the money you take out of the joint account will be included in that 60 percent, even if you've already have spent it. A judge might also award a different account or asset to your spouse to compensate for what you spent. Generally, however, this only happens if you dissipated the asset or spent the money frivolously.
If you need the money in the joint account to make ends meet after you leave your husband, it's doubtful you can get into much trouble if you just take half of it. If you use the account without your husband's knowledge, and depending on the balance, you could create accounting problems and overdrafts if he thinks the money is there but you've spent it. An alternative might be to simply withdraw half the balance — roughly what you'd be entitled to in a divorce — and deposit it into an account in your own name.
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- Eric C. Nelson: Should I Empty the Joint Bank Account in Anticipation of a Minnesota Divorce?
- Divins & Divins: Getting Divorced -- Can I Take Money Out of the Joint Account?
- Bedrock Divorce Advisors: Do You Live in a Community Property State or an Equitable Distribution State?
- check book image by Rob Hill from Fotolia.com