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If I deposit my paychecks in a separate account, are they my separate property?

One of the areas of a divorce that I see many people sort of glance over and not pay all that much attention to is the area of determining whether or not property belongs in your separate or community estate. To be sure, I think that areas of your divorce are more important than determining how your property will be divided. Most notably, any part of your case that has to do with your children ranks high on my list of areas of utmost importance.

With that said, you should not neglect the financial components of your divorce based on the belief that you need to devote all of your attention to your children. At a certain point, you reached a point of diminishing return when it comes to paying attention to only one aspect of your divorce case. For instance, once you have developed and communicated a plan instead of objectives for Visitation and possession of your children to your attorney, you should be keeping an eye on how those negotiations are going and constantly working to improve your relationship with your children. However, it would help if you did not become single-minded in your focus on divorce.

Divorce cases are unique in that they require participants like yourself to divert their attention from anyone subject and rather focus on multiple important subjects if you want to be successful. It is not enough to say that you are a single-issue divorcing spouse. Rather, the people who achieve the greatest degree of success in their divorce cases tend to focus on several areas within the context of their divorce cases. Otherwise, you may not end up accomplishing any of your goals and well devoted all of your time to things that ultimately did not help you or your family.

What to do if your spouse is attempting to open their bank account and deposit their work check in there?

I have seen asked before regarding what you can do if your spouse or two open up their bank account, separate from your jointly held bank account, to deposit their work check in there. This can be a troubling sign not only for a potential divorce but obviously for the strength and well-being of your marriage. I am a big proponent of sharing bank accounts with your spouse to make sure that your goals are shared and communicate about your financial lives as a team.

On occasion, I do run into situations where a spouse will want to do something like this to avoid spending money in the bank account on frivolous items or overspend in other areas. Even in the circumstances like these, it is recommended that you take the time to attempt to obtain counseling or therapy for your spouse and you all as a married couple. Even if you can successfully diagnose a problem with spending or budgeting in your marriage, it still does not mean that you all have worked through any communication issues that may exist in your relationship. As a result, I highly recommend obtaining counseling or assistance in this regard to make sure that the issues inherent in separating your financial assets do not spread or emanate from other problems.

Were you to find yourself in a situation like this; you should consider meeting with an attorney to discuss your options. Obtaining a temporary order from a judge that allows you to keep an eye on any money in the bank account and prohibit them from spending any money on anything but essentials is a good start. By all means, you want to make sure that this money stays in the account and does not get spent. It is much easier to keep track of liquid cash rather than determine where money was spent and play games of tracing and things of that nature.

Keep in mind that it is not illegal for your spouse to have a separate bank account. By the same token, it is not illegal for your spouse to deposit their work check-in in a separately held bank account. In truth, it doesn't matter whose name is on the bank account where the check is deposited into. As long as you are married in the incomes generated during your marriage, that money is classified as community income and is subject to division in your divorce. For your marriage, both you and your spouse have a duty to support each other from a financial perspective. A court will help you decide and determine how income is to be spent during a marriage.

What happens if your spouse spends all the money in your joint bank account?

Another troubling situation that you may run into due to a divorce or other marital problems is to attempt to withdraw money from a bank account that has no funds within it. If you and your spouse own a bank account together, then it is likely that you all have had to coordinate the deposit and withdraw functions together over time. However, when communication breakdowns occur and the course of your marriage, it could lead to situations where a spouse feels empowered to withdraw large sums of money without consulting you in the 1st place.

An extreme example of a situation like this would be to attempt to withdraw money and find that there are no funds in the account whatsoever. This is a terrifying situation, even if you figure that at some point in time, you will be able to retrieve the money through the divorce process. At that moment, you have no money, and it would be some time into the future for you to be able to get it back legally. Keep in mind that if the money was withdrawn from a jointly held bank account, it is completely legal what they did. The only exception to this rule would be if your spouse withdrew the body after a temporary order was in place in your divorce that forbids such an action.

Getting the money back is truly what matters. Going beyond a discussion of whether or not it was legal, you will likely be able to seek the money through a divorce and a future court order. Even if the money ends up being spent by your spouse, a family court judge can order that a similar amount of money be shifted to you in the division of your community estate powered by taking part of your debt responsibilities and shifting that onto your spouse. It would be best to meet with an experienced family law attorney as soon as possible to discuss your options and implement a plan quickly before your spouse may spend the money.

Figuring out why the money was withdrawn in the first place

it will be useful to figure out for what purpose the money was withdrawn. If your divorce has already started and the money was withdrawn by your spouse to hide it from you or to prevent you from being able to use it on an attorney or other essential items, then it is very likely that your spouse will suffer some degree of punishment from a judge. Look through your temporary orders to determine what, if any, orders have been violated by your spouse in this regard.

On the other hand, if your divorce has not yet begun, you are in a trickier situation as far as holding your spouse responsible for their actions. As we stated a moment ago, there is no law against a joint bank account Holder withdrawing large sums of money at any one time. Assuming that a minimal amount of money was left in the account sufficient to keep the account open and from drawing penalties from your bank or credit union, then the financial institution will not stop your spouse from withdrawing the sums of money that they have.

Sometimes a spouse will tell me that his or her husband or wife withdrew a large sum from their jointly held bank account in that the money has been used for something that did not benefit their family. Once we investigate the matter, sometimes we will find out that the money was used to pay down debt, pay for the essential cost associated with the divorce or even pay for something having to do with their children. This is quite a different story than what the client told us at the beginning of the process.

Under most scenarios, there is nothing wrong with using funds during a divorce to pay for necessary costs in bills. Legal fees, household bills, and bills associated with their children are just a few of the allowed sources for money to be spent. In this case, it is unlikely that a family court judge would punish your spouse or award you any kind of temporary funds for your spouse having withdrawn money from the account in the 1st place.

On the other hand, if your spouse uses the money for things that are not determined to be essential for your divorce or your family life, then your spouse may be punished by the judge. I envision a situation where your spouse utilized the money to pay for gifts or even expensive trips for a boyfriend or girlfriend. In that case, you should do as much investigating into the subject as you can, and any proof of where the funds were spent should be provided to your attorney.

Spending money on a paramour or any other kind of infidelity during the case is called wasting community assets. Judges in Texas look at this very seriously and are prone to reimbursing an innocent spouse like yourself if money has been wasted on nonessential things. As long as you can collect evidence and do so in a legal manner, you may be reimbursed for any money withdrawn from your jointly held account or even from one of your spouse's separate bank accounts that do not bear your name.

What about concerns you may have over a spouse is hiding assets?

One of the major concerns you may have about your divorce is the possibility that your spouse is hiding or not disclosing assets they may own to you. This concern could center around A bank account you have always suspected your spouse is maintained, but you have never really followed upon. Now that your spouse has filed the divorce in the family court for your County, you are concerned that they may be keeping assets from you that should be eligible for division in your divorce. How do family courts in the state of Texas treat an issue like this?

As a Community property state, money earned during your marriage is considered eligible for division in a divorce no matter what kind of account it is being held in. The trick of the matter is determining that there are accounts in your spouse's name that contain money that should be divided in your divorce. If you merely suspect that your spouse is keeping money from you that you do not know about, you will not be able to act on this suspicion unless you can confirm a thorough investigation into the matter more fully.

A court would look to your ability to earn future income and your separately held assets and that of your spouse when dividing up the community estate. If you and your spouse have fairly equal income earning potentials, it is more likely that your community estate will be split in an even fashion. On the other hand, if you earn a significantly greater amount of money each year than your spouse does, it is possible that most of the community estate could be awarded to your spouse to make up for this uneven distribution of income earning potential.

No matter if discovery is pursued in your divorce or not, both you and your spouse will be made to complete in inventory and appraisement of all bank accounts that you own, investment accounts, assets, paychecks from employers, debt statements from credit cards, tax returns and other financial documents that your court may request. The purpose of this is to make sure that no one is trying to hide assets or debts from the other party and to give the court an idea of what is at stake in terms of your financial life.

My general thoughts on this subject are that hiding bank accounts and assets are more difficult now than previously. The reason being that you can hypothetically trace the money back to its origin much easier using technology than in a world where your spouse could conceivably hide income through random bank accounts scattered throughout your area. Furthermore, utilizing the discovery methods like a request for production should cause your spouse to disclose any outstanding bank account information.

Attempting to hide assets from your spouse can also get you into a fair bit of trouble. Trying to be dishonest with her spouse and the court can land you in hot water with a family judge. It would help if you looked out for significant decreases in your spouse's income over a short period. If your spouse is used to earning a certain sum of money and then appears to be depositing only a fraction of that without reason, then they may be attempting to conceal their true level of assets.

Another trick that I have seen people try is to open up bank accounts by listing their address at the appeal box or other physical address. This would allow for any suspicious financial doings to go under-reported and unnoticed, theoretically, by you. There is no other explanation that I can think of why a spouse would attempt to list another address on any financial documents or mailings. It will help if you keep your eye out for any behavior out of the ordinary or that seems out of character for your spouse. As you approach a divorce, nothing that seems out of context or strange should go without investigation.

Questions about the material contained in today's blog post? Contact the Law Office of Bryan Fagan

If you have any questions about the material contained in today's blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultation six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law and how your family circumstances can relate to the law in the context of a divorce or child custody case.

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