When I started practicing family law back in the olden days of 2003, one of the pieces of advice I often heard given out was to tell the spouse who started the action to make sure he or she took the money from the joint account before the other party did. It all made perfect sense back then. The joint checking account was where the family kept its money, deposited paychecks, and paid the monthly bills…by paper check. As long as one party had all the checks, the account would be in good, safe hands.
15 years later, and I think I have written maybe 5 checks in the past year. Apple and Samsung have made using paper checks obsolete. You can pay your mortgage, utilities, and assorted bills with the touch of a button or swipe of the finger. Even if you want to write a check, most places will not take them anymore. So, what does this change from an analog to a digital world mean to you in your divorce? Well, if you are like most families, it can mean the difference between maintaining an account in the black or bouncing payments like a rubber ball.
With the advent of mobile banking and bill pay, a majority of Americans now have their monthly expenses removed directly from their bank accounts. Many employers and employees use direct deposit for paychecks. Even child support units use direct deposit as opposed to paper checks. What happens if a party removes all of the funds from the account without telling the other? Often times, overdrafts and penalties may occur. If enough checks and payments bounce, criminal charges could be brought. Even knowledge that the money was moved may not be enough to allow for payment to come out a different account. Depending on what the late payments are for, the effects of a missed payment could trigger issues with interest rates and credit.
What’s more, in North Dakota, the removal of funds could be considered a dissipation of marital assets under the Summons if the action has been filed and the removal results in loss of marital funds. It can also be a harm to the marital estate that could trigger and ex parte order under the North Dakota Rules of Court. Under either of these scenarios, the removing party could be required to return the funds to the account an be held liable for the damage that was done to the estate in a final distribution.
Which brings me back to 2003. Even if a client had taken the advice and drained the account, it is not like they got to keep the money. It was still divided equitably, and an accounting was still necessary. Possession was not 9/10 of the law. That remains the case today. So, with all the risk associated with doing so, it doesn’t make sense to drain the accounts. Leave them as is until the court awards their use one way or the other.