Massachusetts Divorce and Bank Accounts – “What’s Mine is Mine?”

Massachusetts is a separate property state, as compared to others in the United States which are community property states. A separate property state, in the most ideal sense, means what you would think it would mean…that is, that what is mine is mine, and what is yours is yours. However, in the Massachusetts Probate and Family Court System the judge will use the legal principle of equity to attempt to divide property in a manner that is “fair.”

The trouble with dividing property up “fairly” in a divorce is that what one person may think of as fair, another may think is completely unfair. So, we are left, in Massachusetts with a wide range of decisions by judges which vary depending upon the circumstances of the case. The bottom line in a Massachusetts divorce is that no matter whether you are the party that has filed for divorce or whether you are the party upon whom divorce was filed, you will need to tread very carefully when it comes to how you deal with property in the marriage, particularly with bank accounts.

What are the Types of Bank Accounts the Divorce Court Looks at?

Individual Bank Accounts in Massachusetts

In the most strict technical and legal sense, the only person that may remove money from a bank account is the person or persons whose names are on that bank account. So, for example, if you have access to your spouses bank account (because you are the one who pays all of the family bills every month) this fact does not mean you have the “right” to withdraw funds on an account with that is in your spouses name. This has happened, and may result in serious consequences for the spouse who has withdrawn the other spouses money.

On the other hand, just because your spouse has money in a separate, individual bank account in a Massachusetts bank does not mean that a Probate and Family Court judge in Massachusetts will necessarily agree that this money is separate for the purposes of determining what is marital property. Here, at this juncture, is where you hire a lawyer to make the types of legal arguments that a judge will recognize that might help that judge see why this money is really both of yours. For example, suppose you have been a stay at home mother of three children for ten years.

Your husband, in this case, has been working throughout this time and places 50% of earnings in a joint bank account for the purpose of handling bills and other financial matters. In addition, he has always given you 10% of his income as extra discretional income, which you place in your individual bank account, and he saves the rest (some of which is used as discretional income and the rest goes to savings).

The question, in the above example, becomes….whose money is the 40% that husband has kept in his individual bank account. The answer, as explained previously, will depend largely upon the arguments made by each lawyer in court, the facts and circumstances in the case, and the judge’s interpretation of all of this information. But, one possible outcome is that the judge will simply pool all of this money and divide it right down the middle…this is because, since the wife in this instance has spent ten years supporting the household and the husband here has been earning the money, the judge may interpret each party’s role as equal. There are other outcomes that are equally possible. Contact attorney Gaudet at 978-273-8337 to see where you might fall in the eyes of a Massachusetts Probate and Family Court judge with respect to financial matters in a divorce.

Joint Bank Accounts in Massachusetts

A joint account is what the name implies, an account with both of your names on it. This money is more easily recognizable by a judge in a divorce as property of the marriage.

What are my Options with “My” or “Our” Money During Divorce?

Again, a very difficult question to answer because of the fact that a judge in a Massachusetts divorce has the right to divide all property equitably. The real question is, what is equitable…what might a judge view as equitable….the real answer is…it depends upon the circumstances and the ability of your attorney to argue your case.

The next logical question asked by my clients is, “since some of my money is in a separate, individual bank account, and we have both agreed that this money is mine (and their money is theirs), can’t I simple take it out. Generally, the answer is no to this question because once divorce is filed the parties cannot make financial transactions that are not required for normal, everyday living. Similar to when a person files for bankruptcy, there is an “stay” on any financial transactions that occurs upon the filing of divorce in Massachusetts. You do not want to be in the position of having to defend moving large amounts of money to a judge, or of being required to put this money back or face having this money offset an award that would otherwise go to you.

Other considerations in a divorce are whether or not one party can use 50% of the money in an account, after all, if a judge is likely to divide up everything equitably and 50% is the likely outcome of that equitable division, why not simply spend or take out 50%. The problem with doing this is that equitable doesn’t necessarily mean equal, it means instead that a Massachusetts judge is going to determine what is fair given the circumstances. So, with respect to taking half of any money that you might consider yours out of a bank account, it is typically advisable to wait….to not withdraw any large sum of money upon filing or possible before filing for a divorce.

Experience Matters

Attorneys that have experience making legal arguments around financial issues in front of a Massachusetts Probate and Family Court judge are necessarily going to have better outcomes than those who do not. Attorney Gaudet has ground level, in court experience in these areas, and understands how to present an issue to the Court that will have the best chance of being well received. Judges in Massachusetts that work in the area of divorce and family law have heard and seen it all. Remember that these people spend every day listening to, assessing and evaluating the truth of claims made by parties on opposite sides of the fence – they are experts in most cases at coming up with a solution that is equitable. If you are facing a divorce in Massachusetts you need an attorney that can evaluate the judge, evaluate your case, and produce a likely scenario that helps you understand what is coming down the road and whether or not divorce is even right for you. Please contact attorney Gaudet for more information.

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