We are often asked “How do I keep my former spouse from taking money out of our accounts during the divorce?”
One of the concerns shared by many people contemplating a divorce is the fear that their former spouse may attempt to take money out of joint accounts, or run up credit cards prior to a divorce. The fastest and surest way to put a stop to these concerns and protect community property is to serve divorce papers.
When we file a divorce in Carlsbad, Oceanside or anywhere in Carlsbad the filing includes what are known as “Automatic Temporary Restraining Orders” or ATROs. These orders are designed to protect both of the former spouses and apply equally to both parties.
One of the first ATROs prohibits both parties from “transferring, encumbring, hypothecating, concealing or in any way disposing of” any property, even if it is considered separate property or quasi-community property without the written consent of the other party or an order from the Court except in the usual course of life or business (such as purchasing groceries or gas, or paying a monthly bill).
ATROs are the one of the best defenses if you are concerned about a former spouse taking money out of your accounts or running up debts. ATROs apply to all real and personal property including real estate, bank accounts, credit cards and all assets. You may not take out a loan, or pledge any property as collateral. You may not remove money from a bank account and give it or any other personal items to someone else to hold for you. These orders will apply to anything you have at home and even those items in a safe deposit box.
Another important legal fact which helps to keep a former spouse from taking money out of your accounts is the issue of a “fiduciary duty.” The former spouses owe a fiduciary duty to one another, which legally means they must act in the best interests of the other person and with the highest standard of transparency, good faith and fairness. These duties apply throughout the marriage and until the final divorce decree is completed.
ATROs and the fiduciary duty of spouses prevent a former spouse from taking money out of your accounts and that money, credit cards and assets are not misappropriated or misused without severe consequences.
The experienced Carlsbad divorce attorneys at Burke & Domercq guide our clients through many decisions associated with the divorce including strategies to protect and preserve accounts and property. We invite you to contact us, or call 760-434-3330 to learn more or schedule an appointment with one of our Certified Family Law Specialist attorneys.