Need some advice about joint banking and divorce paper serving

[ssjhook]

California...

Me and my wife separated on October 30th, I moved out, took most of my personal belongings. On November 1st I had a direct deposited check from my work place go into our joint account, I had no way to stop it because of the short notice.

That same day I went to the bank and closed our joint account, the only balance that was on the joint account was the money from my direct deposited check. I transferred the funds from my check into my new account.

My wife texts me a few hours later telling me she's going to use some of the money, I explained to her that I closed our joint account and put my money into my new account because I no longer wanted to be associated with the joint account.

She became very angry threatening to call the police stating that she had court documents that stated I could not do that, the documents she supposedly has is from her filing a divorce a few months back however I was never served these papers and we tried to work things out after the divorce was filed.

We don't have any mortgage or debt together, the only bill that is pending is an electricity bill which I plan to give her a check for as I don't want there to be any past due bills until she can go file for whatever support she needs. Also I plan on providing my son with all his necessities until she can get support. I just don't want to hand her over my money because she says she is entitled to it unless I'm legally obligated to do so.

My question is what should I do at this point? I plan on contacting my attorney on Monday however I've already had a consultation with him and I'm not sure how much legal advice he's going to be willing to give me until I retain him, I plan on retaining him I just don't know if I have the funds at this point especially if I have to give my wife half of my paycheck.

 

[sandyclaus]

California...

Me and my wife separated on October 30th, I moved out, took most of my personal belongings. On November 1st I had a direct deposited check from my work place go into our joint account, I had no way to stop it because of the short notice.

That same day I went to the bank and closed our joint account, the only balance that was on the joint account was the money from my direct deposited check. I transferred the funds from my check into my new account.

My wife texts me a few hours later telling me she's going to use some of the money, I explained to her that I closed our joint account and put my money into my new account because I no longer wanted to be associated with the joint account.

She became very angry threatening to call the police stating that she had court documents that stated I could not do that, the documents she supposedly has is from her filing a divorce a few months back however I was never served these papers and we tried to work things out after the divorce was filed.

We don't have any mortgage or debt together, the only bill that is pending is an electricity bill which I plan to give her a check for as I don't want there to be any past due bills until she can go file for whatever support she needs. Also I plan on providing my son with all his necessities until she can get support. I just don't want to hand her over my money because she says she is entitled to it unless I'm legally obligated to do so.

My question is what should I do at this point? I plan on contacting my attorney on Monday however I've already had a consultation with him and I'm not sure how much legal advice he's going to be willing to give me until I retain him, I plan on retaining him I just don't know if I have the funds at this point especially if I have to give my wife half of my paycheck.

She does. When the divorce was originally filed, it comes with an ATRO - an Automatic Temporary Restraining Order that prohibits either party from transferring or disposing of joint assets (such as funds in a joint bank account) until such time as the divorce has been finalized. It doesn't matter that you decided to try to work things out. If she never dismissed the dissolution filing, that ATRO is still in effect - and by removing money from a joint bank account without notifying her, you just violated that order.

California is a community property state. That means she is entitled to half of EVERYTHING you own. That includes the money in that bank account - whether it came from your own paycheck or hers.

You could get into some serious trouble over this. At the very least, you will probably be required to reimburse her half of the money you took (since it appears she was responsible enough to let you know she needed to use some of it).

I think it's definitely time for you to retain that attorney now to help you sort this out. And get your direct deposit switched over to your new account so that you aren't pulling funds from the joint account any longer.

 

[ssjhook]

Well I was never served any papers so I wasn't even aware of these orders, and I was under the impression that any money I earned after separation is my separate property regardless if its in a joint account or not, I closed the joint account to avoid any wasting of my funds or bank penalties that could be inquired by my wife

If I cannot get legal advice from my attorney does anyone have any suggestions on how I should move forward to alleviate this issue? Should I give my wife half of the funds that were in the account? Or has the damage already been done?

I plan on contacting my attorney ASAP but due to my job schedule it may be a couple of weeks before I can meet up with him and like I was saying earlier I doubt I can afford to retain him at this point

I have already cancelled my direct deposit

 

[sandyclaus]

Well I was never served any papers so I wasn't even aware of these orders, and I was under the impression that any money I earned after separation is my separate property regardless if its in a joint account or not, I closed the joint account to avoid any wasting of my funds or bank penalties that could be inquired by my wife

If I cannot get legal advice from my attorney does anyone have any suggestions on how I should move forward to alleviate this issue? Should I give my wife half of the funds that were in the account? Or has the damage already been done?

I plan on contacting my attorney ASAP but due to my job schedule it may be a couple of weeks before I can meet up with him and like I was saying earlier I doubt I can afford to retain him at this point

I have already cancelled my direct deposit

The ATRO is a STANDARD for all dissolution filings in CA, from what I can ascertain. So, whether or not you were actually served with the divorce papers, you were certainly aware that your wife had filed. Your attorney will probably tell you that the ATRO has been in effect all this time, since you knew about the divorce filing.

As for money earned during the separation being sole and separate property, that's not necessarily true. That would be true if it were a legal separation, but since the divorce was actually filed by one party, then that doesn't apply in your case until the disposition of the case - whether ending in an actual divorce decree or dismissal.

Seriously - you need to speak with your attorney. Stop futzing around and getting little bits of advice from them and retain them already. You're going to need the protection that will provide you here.

 

[ssjhook]

Also I was under the impression that the ATRO doesn't go into effect for me until I'm served papers, is this true?

 

[ssjhook]

I'm confused because there isn't any proof that I knew about a divorce being filed and its basically her word against mine? If I was never served with any papers and there was no witness to testify that I was served with papers and given a court order how can I have really known a divorce was filed or that there was a court order in place?

I'm not a lawyer or anything but that makes absolutely no sense that I would have to follow a court order that I never received simply because my wife claims that she told me she was going to file a divorce.

 

[latigo]

California...

Me and my wife separated on October 30th, I moved out, took most of my personal belongings. On November 1st I had a direct deposited check from my work place go into our joint account, I had no way to stop it because of the short notice.

That same day I went to the bank and closed our joint account, the only balance that was on the joint account was the money from my direct deposited check. I transferred the funds from my check into my new account.

My wife texts me a few hours later telling me she's going to use some of the money, I explained to her that I closed our joint account and put my money into my new account because I no longer wanted to be associated with the joint account.

She became very angry threatening to call the police stating that she had court documents that stated I could not do that, the documents she supposedly has is from her filing a divorce a few months back however I was never served these papers and we tried to work things out after the divorce was filed.

We don't have any mortgage or debt together, the only bill that is pending is an electricity bill which I plan to give her a check for as I don't want there to be any past due bills until she can go file for whatever support she needs. Also I plan on providing my son with all his necessities until she can get support. I just don't want to hand her over my money because she says she is entitled to it unless I'm legally obligated to do so.

My question is what should I do at this point? I plan on contacting my attorney on Monday however I've already had a consultation with him and I'm not sure how much legal advice he's going to be willing to give me until I retain him, I plan on retaining him I just don't know if I have the funds at this point especially if I have to give my wife half of my paycheck.

Don’t get in a sweat over the disposition of your salary! There is no need.

And don’t panic because some misguided alarmist tells you that by refusing to turn it or any part of it over to your estranged wife that you are in big trouble because it happens to be community personal property.

By the laws of your state EITHER spouse has the right to the management and control of community personal property. (Cal Family Code Section 1100(a).

Right now you have control and she doesn’t. And you can continue to manage that money as long it is done prudently and without unnecessary waste.
___________

Also disregard the ill-advised warnings that should you refuse the wife’s demands you could be found in contempt of court for violating some unknown and unseen automatic temporary restraining order supposedly issued by some unknown court!

In the first place you are NOT bound by any such domestic ATRO until you have been served with summons, which by California law MUST include the ATRO. (Cal. Family Law Section 2040 (a).

In the second place such an order would NOT prevent you from using our salary for normal living expenses. (Cal. Family Law Section 2040 (a)(2).

_____________________________

If you need any part of that salary in order to retain a divorce attorney, then feel free to use it for that purpose.

 

[Bali Hai]

Don’t get in a sweat over the disposition of your salary! There is no need.

And don’t panic because some misguided alarmist tells you that by refusing to turn it or any part of it over to your estranged wife that you are in big trouble because it happens to be community personal property.

By the laws of your state EITHER spouse has the right to the management and control of community personal property. (Cal Family Code Section 1100(a).

Right now you have control and she doesn’t. And you can continue to manage that money as long it is done prudently and without unnecessary waste.
___________

Also disregard the ill-advised warnings that should you refuse the wife’s demands you could be found in contempt of court for violating some unknown and unseen automatic temporary restraining order supposedly issued by some unknown court!

In the first place you are NOT bound by any such domestic ATRO until you have been served with summons, which by California law MUST include the ATRO. (Cal. Family Law Section 2040 (a).

In the second place such an order would NOT prevent you from using our salary for normal living expenses. (Cal. Family Law Section 2040 (a)(2).

_____________________________

If you need any part of that salary in order to retain a divorce attorney, then feel free to use it for that purpose.

Very eloquently stated. I had a plan of how I was going to break that bucking bronco but decided against it after reading your response.

 

[ssjhook]

Thanks for the advice everyone I'm going to see my attorney this morning hopefully and talk to him about retaining him, taking a 3 day suspension from work in the process....ouch....wish me luck

 

[ecmst12]

Are you the sole support of your wife or does she have her own paycheck?

 

[tranquility]

Don’t get in a sweat over the disposition of your salary! There is no need.

And don’t panic because some misguided alarmist tells you that by refusing to turn it or any part of it over to your estranged wife that you are in big trouble because it happens to be community personal property.

By the laws of your state EITHER spouse has the right to the management and control of community personal property. (Cal Family Code Section 1100(a).

Right now you have control and she doesn’t. And you can continue to manage that money as long it is done prudently and without unnecessary waste.
___________

Also disregard the ill-advised warnings that should you refuse the wife’s demands you could be found in contempt of court for violating some unknown and unseen automatic temporary restraining order supposedly issued by some unknown court!

In the first place you are NOT bound by any such domestic ATRO until you have been served with summons, which by California law MUST include the ATRO. (Cal. Family Law Section 2040 (a).

In the second place such an order would NOT prevent you from using our salary for normal living expenses. (Cal. Family Law Section 2040 (a)(2).

_____________________________

If you need any part of that salary in order to retain a divorce attorney, then feel free to use it for that purpose.

While I agree in general, a KEY portion to understand here is:
"And you can continue to manage that money as long it is done prudently and without unnecessary waste."

By removing the community funds after separation, the OP now has a fiduciary duty to the wife to at least account for the funds and prove they were spent for community issues. (While I don't see an easy source without registration for the case, see "Marriage of Margulis, G041948" and discussions regarding the case. The appellate order, which is a little hard to read without the underlying case, is at http://law.justia.com/cases/california/court-of-appeal/2011/g041948n.html ) One discussion is at: http://www.thurmanarnold.com/Blog2/2011/August/IRMO-MARGULIS-Managing-Spouse-Has-BURDEN-OF-PROO.aspx

 

[Bali Hai]

While I agree in general, a KEY portion to understand here is:
"And you can continue to manage that money as long it is done prudently and without unnecessary waste."

By removing the community funds after separation, the OP now has a fiduciary duty to the wife to at least account for the funds and prove they were spent for community issues. (While I don't see an easy source without registration for the case, see "Marriage of Margulis, G041948" and discussions regarding the case. The appellate order, which is a little hard to read without the underlying case, is at http://law.justia.com/cases/california/court-of-appeal/2011/g041948n.html ) One discussion is at: http://www.thurmanarnold.com/Blog2/2011/August/IRMO-MARGULIS-Managing-Spouse-Has-BURDEN-OF-PROO.aspx

I'm sure the OP will adequately produce evidence that his paycheck wasn't misused and all funds can be accounted for.

As an aside, here in NY my paycheck became non-marital as of the date of the commencement of the divorce action.

Next point.....

 

[Zigner]

...here in NY yada yada yada

Irrelevant

 

[latigo]

While I agree in general, a KEY portion to understand here is:
"And you can continue to manage that money as long it is done prudently and without unnecessary waste."

By removing the community funds after separation, the OP now has a fiduciary duty to the wife to at least account for the funds and prove they were spent for community issues. (While I don't see an easy source without registration for the case, see "Marriage of Margulis, G041948" and discussions regarding the case. The appellate order, which is a little hard to read without the underlying case, is at http://law.justia.com/cases/california/court-of-appeal/2011/g041948n.html ) One discussion is at: http://www.thurmanarnold.com/Blog2/2011/August/IRMO-MARGULIS-Managing-Spouse-Has-BURDEN-OF-PROO.aspx

Well it is comforting to have your qualified approval, but until appropriate proceedings are underway and specific orders issued AND SERVED, neither spouse is legally obligated to account to the other for a blessed thing!

 

[Doreen]

As an aside, here in NY my paycheck became non-marital as of the date of the commencement of the divorce action.

Next point.....

Hmmm...
While your paycheck may now be "non-marital", isn't part of it still going to her