Clients often ask me about joint bank accounts when they're about to separate or are going through divorce in Maryland.
Question #1: Can you withdraw the money from the joint bank account? Answer: Yes
Question #2: Can your spouse claim you “stole” the money? Answer: No.
Question #3: Should you withdraw the money from the joint bank account? Answer: It depends.
Maryland law, Financial Institutions Art. §1-204(f) allows that, unless the account agreement expressly provides otherwise, funds in a joint account may be withdrawn by any party, whether or not any other party to the account is incapacitated or deceased. (A “party” is defined as “any person who possesses the present right to withdraw.”)
In addition, Maryland Criminal Law §7-110(c)(3) provides that it is a defense to the crime of theft that: … the property involved was that of your spouse, unless you and your spouse were not living together and were living in separate residences at the time. (This same statue provides other defenses that might apply, such as when you act under a good faith claim of right to the property involved or had the honest belief that you had the right to obtain or exert control over the property.)
Whether you should withdraw the money and how much is another question. The answer must be informed by your overall divorce strategy and will depend on your personal circumstances, such as your income and your and your children’s necessary expenses and whether you reasonably expect your husband to continue to contribute to your support you during separation.
A suggestion: as a rule of thumb, withdraw a minimum amount equal to 30 days of expenses or one-half the account, whichever is greater. But again, depending on your personal situation this amount will vary, and you may need to consider withdrawing more.
Next, consider what you will do with the money. First, put it in a brand new account at a different institution that your spouse cannot access. Second, you will need to be prepared to give an accurate account of how you spent it. If you waste or dissipate the money, the court may reach back and credit the wasted funds to your husband’s side of the property division, but expenditures for necessary expenses for you and the children (food, clothing, medical, dental, orthodontia, mortgage, utilities, etc.) would be fine. Also, paying your attorney’s fee, suit money and divorce costs is also acceptable. Be sure to keep careful documentation of what the money is used for.
If you have further questions about this issue or your other rights in divorce, call us or complete the email contact form on our website to schedule a consultation. We’d be happy to be of help to you.