In California, when the parties are married and living together, either party can withdraw funds from a joint back account. The purpose for which the funds may be used depends on the ‘intent of the withdrawing party.’ Even if the funds are used for the withdrawing party’s personal use, rather than for joint living expenses, that decision generally will not be disturbed or undone, absent a judicially recognized exception.
However, once either of the parties files for dissolution of marriage (a.k.a. divorce), there are “Automatic Temporary Restraining Orders,” (ATRO’s) which go into effect immediately. Said orders are binding on the party who files, as soon as the petition for dissolution is filed with the court. The orders are binding on the responding party, as soon as that party is served with the petition. What these orders do is prevent either spouse from transferring, encumbering, or borrowing against the property until the dissolution is final. Put in lay terms, that means that once the petition is filed, neither party can withdraw money from joint accounts without court approval.
Even in today’s modern world, often times, it is one party who is the primary bread winner and who controls all of the finances. (Usually that person is the husband). Therefore, if you are the non earning party, and if you are planning to file for divorce, it is prudent to think ahead and estimate about how much money you will need to pay your lawyer, and to pay basic living expenses while going through a divorce. Once the ATRO’s or temporary orders go into effect, a party who withdraws funds to pay for attorney’s fees or living expenses, may be violating a court order.
The amount that a party withdraws from a joint account, prior to filing for a divorce, varies with the circumstances. I generally advise my clients not to withdraw more than one-half (½) of the total amount in the account. That is because, in general, they are entitled to about ½ of the marital estate. I also advise my clients to keep very careful records of all large withdraws prior to filing. In all likelihood, the other party’s lawyer will make reasonable discovery requests in order to ascertain what the funds were used for.