Question:
My spouse withdrew a large amount of money after filing for a divorce from a joint account to purchase a home to flip without my consent or knowledge.
Is the money made when the property was sold considered marital property subject to division or does my spouse get to keep the profit from this investment?
Answer:
I am unable to give you legal advice on divorce. I can give general divorce help for men, though, my knowledge is based on Indiana divorce laws where I am licensed to practice.
Where I practice, as of the date of filing, there is a presumption that after-acquired property is separate property. It is often treated as if there was a snapshot taken on the date of filing of all property within the marital estate and that is the property to be divided.
However, this presumption may be overcome. You may present arguments that the money removed from the joint account was joint property and the risk was taken with property that belonged to each of you so the “reward” should be split by each of you.
It is possible that your spouse will argue that the money he removed was only what would have been his share, and so the risk was his alone and the reward should be his alone. The judge will be given the opportunity to hear evidence on both positions and make an award based on the specific facts and evidence before him.
Property Division:
One consideration will be whether there are any local rules in the court where your divorce is pending placing a temporary restraining order in effect on finances.
Another consideration will be the total value of the estate and the amount which was in the joint account when the money was removed: If the judge ordered a 50/50 split of the marital property, would there be sufficient funds to consider the amount removed from the account as your spouse’s sole property in the event that it had been lost?
The judge will base his decision on whether the evidence presented by you is sufficient to overcome the presumption that the after-acquired property should be considered marital property.
In these situations, the judge has a great deal of discretion and will base his decision on the evidence presented, the relevant local rules, and the specific facts applicable to the case.
Remember, I am unable to provide you with anything more than divorce tips for men, so please consult with a divorce lawyer in your jurisdiction.
To arrange an initial consultation to discuss divorce rights for men with a Cordell & Cordell attorney, including Noblesville, Indiana Divorce Lawyer Sara Pitcher, contact Cordell & Cordell.
