It's a common worry for those in the midst of a South Carolina divorce to wake up one day to discover that your spouse has cleaned out your joint bank account. This could leave you with no money to pay your household expenses, buy food, provide for your children, or pay your attorney.
In some cases, the emptying of the account may happen at the very beginning of the divorce, a kind of preemptive strike meant to deny the other spouse access to money to hire an attorney in the first place. The scary thing is that this happens far more often than you might expect. Can a spouse empty a bank account, and what happens if they do?
Rights to a joint account
First, it is important to understand that when a bank account is titled jointly in two peoples' names, each of them has an equal right to the funds in that account. So if one of them chooses to empty the account, he or she has the legal right to do so, though it may have repercussions later, as discussed below.
It is also important to note that this rule applies equally to married and non-married couples. In other words, if one spouse has an account titled with a parent or other family member, either of them may remove some or all of the funds from that account. For this reason, it is important to know where money is located and how each account is titled.
When is reimbursement required?
If one spouse empties an account that held marital funds, it is likely that the Court will not be impressed and that it will require some or all of the funds to be reimbursed. Remember, Family Court is a court of equity, meaning that it expects parties to act in good faith and it has the ability to remedy situations in which one or both spouses choose not to do so.
One issue that will impact whether a judge requires the party who emptied the account to reimburse the other is whether the money taken can be shown to be separate property. Though both parties have a right to marital assets, if a spouse can prove that the money in the bank account was actually his or her separate property (such as a gift or inheritance) then he or she may not be required to reimburse at all.
Additionally, the court will also consider the reason(s) for which the money was taken, as that is often quite important. For instance, if the account was emptied as a preemptive strike or purely for selfish reasons, a judge is more likely to order the money or a portion of it to be returned. However, if the funds were used to pay joint marital bills or to keep marital property from being repossessed, it will be less likely to be reimbursed. The same will likely apply to funds taken to pay for children's expenses, to hire an attorney, to pay basic expenses, or if the spouse is unemployed through no fault of their own. The bottom line is that in the case of an empty bank account, motivation often matters.