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Money transfers with my wife

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golow

Member
What is the name of your state? Florida
My former colleague sued me and the lawsuit has been going on for several years. I and my wife, along with our kids are barely surviving with a small job I have. I have bank account “joint with right of survivorship” with my wife and I deposit my salary in that. This is the practice we have been following several years prior to the lawsuit was filed. She contributes very little to that joint account as she has no regular job. I and my wife have been paying our credit card bills related to our normal living expenses from this account. After the lawsuit, my wife, with my permission, transferred $4,000 from this joint bank account to her personal account and paid $900 towards her credit card bills for normal living expenses and gave remaining $3,100 to her relative. After several months, she transferred $1,600 (more than half of that $3,100) to my personal bank account from her personal account, after she received a gift from her father. I thought we did nothing wrong. However, I was talking to a friend and he warned me of fraudulent transfers (he faced a lawsuit in the past from someone else) and gave me two important links: http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0726/0726.html and http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0000-0099/0056/Sections/0056.29.html

Then I used my limited knowledge and read some law which I am sharing here. Still have doubts and sincerely request your help to guide me.

A). Paying my wife’s credit card bills (these bills are for her normal living expenses such as her cloths, groceries to our home, etc) directly from our joint account, or after transferring money to her single account (which she did with that $900), will come under fraudulent transfers?

B). The $3,100 she gave to her relative and returned me more than half of that (my calculation is that she own half of the joint account therefore she paid back directly to me more than half she borrowed from that joint account to give to her relative).

I have few more questions which will be irrelevant based on your kind response to the above questions. Please help me.

The case law I read is at https://scholar.google.com/scholar_case?case=6377793034494146442&hl=en&as_sdt=40006 : checking account was a joint tenancy with right of survivorship. In such an account, each tenant "has the right, against the other, only to his or her individual interest in the account" during the lifetime of the joint tenants; funds in the account belong to the parties in proportion to the net contributions by each to the sums on deposit. Nationsbank v. Coastal Utils., Inc., 814 So.2d 1227, 1229 (Fla. 4th DCA 2002). The supreme court recognized this concept in Beal Bank, SSB v. Almand & Associates, 780 So.2d 45 (Fla.2001), when it wrote that "n a joint tenancy with right of survivorship, each person has only his or her own separate share (`per my')[.]" Id. at 53. The shares in the joint account "[are] presumed to be equal for purposes of alienation[.]" Id.
 


golow

Member
Thanks Sir/Mam for your quick answer. I am looking for your valuable feedback on my concerns so that we can try to rectify them before it is too late. I saw some wonderful feedbacks in this forum still I am confused on where I and my wife are in terms of fraudulent transfers. My apologies if this question is redundant but request you to guide me if there is an answer already published in the past.
 

LdiJ

Senior Member
What is the name of your state? Florida
My former colleague sued me and the lawsuit has been going on for several years. I and my wife, along with our kids are barely surviving with a small job I have. I have bank account “joint with right of survivorship” with my wife and I deposit my salary in that. This is the practice we have been following several years prior to the lawsuit was filed. She contributes very little to that joint account as she has no regular job. I and my wife have been paying our credit card bills related to our normal living expenses from this account. After the lawsuit, my wife, with my permission, transferred $4,000 from this joint bank account to her personal account and paid $900 towards her credit card bills for normal living expenses and gave remaining $3,100 to her relative. After several months, she transferred $1,600 (more than half of that $3,100) to my personal bank account from her personal account, after she received a gift from her father. I thought we did nothing wrong. However, I was talking to a friend and he warned me of fraudulent transfers (he faced a lawsuit in the past from someone else) and gave me two important links: http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0726/0726.html and http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0000-0099/0056/Sections/0056.29.html

Then I used my limited knowledge and read some law which I am sharing here. Still have doubts and sincerely request your help to guide me.

A). Paying my wife’s credit card bills (these bills are for her normal living expenses such as her cloths, groceries to our home, etc) directly from our joint account, or after transferring money to her single account (which she did with that $900), will come under fraudulent transfers?

B). The $3,100 she gave to her relative and returned me more than half of that (my calculation is that she own half of the joint account therefore she paid back directly to me more than half she borrowed from that joint account to give to her relative).

I have few more questions which will be irrelevant based on your kind response to the above questions. Please help me.

The case law I read is at https://scholar.google.com/scholar_case?case=6377793034494146442&hl=en&as_sdt=40006 : checking account was a joint tenancy with right of survivorship. In such an account, each tenant "has the right, against the other, only to his or her individual interest in the account" during the lifetime of the joint tenants; funds in the account belong to the parties in proportion to the net contributions by each to the sums on deposit. Nationsbank v. Coastal Utils., Inc., 814 So.2d 1227, 1229 (Fla. 4th DCA 2002). The supreme court recognized this concept in Beal Bank, SSB v. Almand & Associates, 780 So.2d 45 (Fla.2001), when it wrote that "n a joint tenancy with right of survivorship, each person has only his or her own separate share (`per my')[.]" Id. at 53. The shares in the joint account "[are] presumed to be equal for purposes of alienation[.]" Id.
If you are "barely making it" then what rationale are you going to give a judge for giving $3100.00 to one of your wife's relatives? What explanation are you going to give if things actually go that far? The fact that she returned half it to the joint account is helpful, but still, you gave away money you couldn't afford to give away.

However, you do have the right to spend your money (and its your wife's money too) any way that you like. Its only the giving away big chunks of it that could look like you were trying to hide it from your creditor.
 

golow

Member
I very much thank you Sir/Mam. We accumulated some money over years to have a visit to our parents and friends in another country. Suddenly, our relative needed a surgery and we can produce the evidence and I am very positive that the judge or anyone will be convinced. It seems I used wrong choice of word “barely”: the correct way is: we are living a very low profile life financially.

For your kind information, my wife gave me half of that money ($1600) to my single account (not to the joint account) to make sure that I (not both) received half of that $3100 she took from that joint account.

As indicated above, Florida Supreme court dictated that “In a joint tenancy with right of survivorship, each person has only his or her own separate share ("per my"), which share is presumed to be equal for purposes of alienation”. Other courts dictated that “In such an account, each tenant "has the right, against the other, only to his or her individual interest in the account" during the lifetime of the joint tenants; funds in the account belong to the parties in proportion to the net contributions by each to the sums on deposit.”

Whether my wife owns half of the amount in that joint account (if so, paying that $1600 to me directly would probably be enough I believe: please corerct me if I am wrong) or, whether in the joint account, she owns only her share (if so, she has to pay me back almost all $3,100 because her share in the joint account is very very small). Please advice.

Whether paying my wife’s credit card bills (these bills are for her normal living expenses such as her cloths, groceries to our home, etc) from my earnings will come under fraudulent transfers (my wife has almost no income)?
 

LdiJ

Senior Member
I very much thank you Sir/Mam. We accumulated some money over years to have a visit to our parents and friends in another country. Suddenly, our relative needed a surgery and we can produce the evidence and I am very positive that the judge or anyone will be convinced. It seems I used wrong choice of word “barely”: the correct way is: we are living a very low profile life financially.

For your kind information, my wife gave me half of that money ($1600) to my single account (not to the joint account) to make sure that I (not both) received half of that $3100 she took from that joint account.

As indicated above, Florida Supreme court dictated that “In a joint tenancy with right of survivorship, each person has only his or her own separate share ("per my"), which share is presumed to be equal for purposes of alienation”. Other courts dictated that “In such an account, each tenant "has the right, against the other, only to his or her individual interest in the account" during the lifetime of the joint tenants; funds in the account belong to the parties in proportion to the net contributions by each to the sums on deposit.”

Whether my wife owns half of the amount in that joint account (if so, paying that $1600 to me directly would probably be enough I believe: please corerct me if I am wrong) or, whether in the joint account, she owns only her share (if so, she has to pay me back almost all $3,100 because her share in the joint account is very very small). Please advice.

Whether paying my wife’s credit card bills (these bills are for her normal living expenses such as her cloths, groceries to our home, etc) from my earnings will come under fraudulent transfers (my wife has almost no income)?
The money in a joint account belongs fully to both parties. Either party can spend some or all of it. You are getting too hung up on the his/hers concept. Even money in separate accounts is going to be marital assets unless the money accumulated prior to the marriage or was a gift or inheritance from family. Paying normal household bills (household meaning bills for anyone in the household) and necessities is never a fraudulent transfer.
 

golow

Member
I very much thank you Sir/Mam. I read some case laws. Florida has no doctrine of necessities which obligated me to pay my wife’s credit card bills, etc, https://www.courtlistener.com/opinion/1703026/connor-v-southwest-fla-regional-med-ctr/ . Therefore, my concern is on whether my wife paying her credit card bills from the joint account (to which she has contributed almost nothing) will be an issue? At the same time, I saw case law, “A husband has a common law duty to support his wife.” https://scholar.google.com/scholar_case?case=11246708611438997620&q=387+So.+2d+960+&hl=en&as_sdt=40006 I am confused.

You said “Even money in separate accounts is going to be marital assets unless the money accumulated prior to the marriage or was a gift or inheritance from family.” However it appears this is good only during the time of separation or divorce. F.S. §61.075.
 
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LdiJ

Senior Member
I very much thank you Sir/Mam. I read some case laws. Florida has no doctrine of necessities which obligated me to pay my wife’s credit card bills, etc, https://www.courtlistener.com/opinion/1703026/connor-v-southwest-fla-regional-med-ctr/ . Therefore, my concern is on whether my wife paying her credit card bills from the joint account (to which she has contributed almost nothing) will be an issue? At the same time, I saw case law, “A husband has a common law duty to support his wife.” https://scholar.google.com/scholar_case?case=11246708611438997620&q=387+So.+2d+960+&hl=en&as_sdt=40006 I am confused.

You said “Even money in separate accounts is going to be marital assets unless the money accumulated prior to the marriage or was a gift or inheritance from family.” However it appears this is good only during the time of separation or divorce. F.S. §61.075.
Why in the world do you think that "doctrine of necessities" is even remotely applicable to your situation? Why in the world do you think that the concept of marital assets only applies if someone is getting a divorce?
 

golow

Member
Thank you Sir/Mam. Also I saw a case law https://www.courtlistener.com/opinion/1700833/julia-v-russo/ which says "In absence of evidence to the contrary, co-tenants are presumed to owe [sic] equal undivided interests" and this bank account is also joint tenant with right of survivorship. Therefore it is clear that my wife has 50% share of the joint account although she has no or little contribution to the joint account. Also, I read 61.09 Alimony and child support unconnected with dissolution.—If a person having the ability to contribute to the maintenance of his or her spouse and support of his or her minor child fails to do so, the spouse who is not receiving support may apply to the court for alimony and for support for the child without seeking dissolution of marriage, and the court shall enter an order as it deems just and proper. Based on this it seems to me that I have the responsibility to the maintenance of my wife and minor children (even if she is not seeking dissolution of marriage). I do understand that "doctrine of necessities" is not applicable here.

Therefore I am concluding as follows, please help educate me if I am wrongly concluding (as we want to continue this practice in the future as well, whenever necessary): My wife has 1/2 share in the joint account which is "joint with right of survivorship" although she is not contributing any to that. Therefore wera are safe becasue she returned to me half of that $3100. Also she is safe by buying items for her normal living expenses: either directly paying from the joint account, or by transferring (from joint) to her personal account then paying for those expenses.

Our joint account is: "joint with right of survivorship". Is this different from "joint tenant with right of survivorship"? (the word "tenant" is missing in our account). I do understand that nether these accounts are same as "tenancy by entirety" which is a different form of joint account.
 

LdiJ

Senior Member
You need to pay an attorney to advise you. You are not interested in the advice that you are getting here, so you need to pay someone to give you the advice you want.
 

FlyingRon

Senior Member
You are concluding wrong. An undivided interest is NOT half. An undivided interest gives the party entitlement to the entire account.
 

Taxing Matters

Overtaxed Member
Why in the world do you think that the concept of marital assets only applies if someone is getting a divorce?
Because in non community property states, that is exactly the case. Marital assets and equitable division are concepts that apply during divorce. Outside of a divorce, if one spouse is the sole owner of the house, for example, that is his/her asset and he or she may sell, encumber, or give it away without the consent of his/her spouse. Thus, it is the case that where only one spouse owes a debt and he transfers his assets to his spouse to put them out of the reach of creditors the creditors may indeed in at least some circumstances get those transfers reversed under Florida's fraudulent conveyance statute.
 

golow

Member
Thank you Sirs/Mams for wonderful replies.

Because our joint account is “joint with right of survivorship”, and based on the above case law (including Florida supreme court on if my wife took $1,000 to her account and gives me back $500 to me directly, i.e., to my single account (not the joint account) (and we are still continuing that joint account), legally the creditor can say anything in terms of fraudulent transfer claims?

Also, is there any difference, in terms of my potential creditor’s fraudulent transfer claims, if my wife paid her credit card bills (she spent on groceries and other living expenses) directly from that joint bank account vs. transferring money from joint account to her single account then pay her credit card bill?

I am putting the case law which I put earlier, for your quick reference:
https://scholar.google.com/scholar_case?case=6377793034494146442&hl=en&as_sdt=40006 : checking account was a joint tenancy with right of survivorship. In such an account, each tenant "has the right, against the other, only to his or her individual interest in the account" during the lifetime of the joint tenants; funds in the account belong to the parties in proportion to the net contributions by each to the sums on deposit. Nationsbank v. Coastal Utils., Inc., 814 So.2d 1227, 1229 (Fla. 4th DCA 2002). The supreme court recognized this concept in Beal Bank, SSB v. Almand & Associates, 780 So.2d 45 (Fla.2001), when it wrote that "in a joint tenancy with right of survivorship, each person has only his or her own separate share (`per my')[.]" Id. at 53. The shares in the joint account "[are] presumed to be equal for purposes of alienation[.]" Id.

https://www.courtlistener.com/opinion/1700833/julia-v-russo/ which says in 2008 "The issue here is how to determine what share a tenant in common is entitled to. In absence of evidence to the contrary, co-tenants are presumed to owe [sic] equal undivided interests" and this bank account is also joint tenant with right of survivorship."
And our joint account did not say anything about how much interest each of us has in that account.
 
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BuyLowSellHigh

Active Member
Florida has some of the strongest asset protection laws in the country which is why we see many questions from Florida.

Personally, I previously moved to Florida in order to protect assets. I paid an attorney that specialized in asset protection to represent me. If you have assets that you are concerned about losing it would be a good idea to get legal advice from an attorney that specializes in asset protection.

I'm not an attorney but will share my understanding based on my experience. I used funds in accounts only in my name to pay for all expenses and then closed those accounts. My wife was not part of the lawsuit so our properly opened joint accounts at a Florida credit union were protected. This is where my paycheck was deposited. I chose to avoid national banks and use a Florida credit union so all garnishment orders had to go through a Florida court where I had Florida protections that are different than other states.

I had no judgement or court order requiring otherwise so I was free to spend my money on whatever I chose whether it be a necessity or a $10,000 bottle of wine. Until the court orders me otherwise it was my money to spend however I wanted. However, I did not try to hide money or assets by transfering them to relatives or others to hold them.
 

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