First off, don’t panic. When any divorce proceeding is started in Minnesota, one spouse must be served with summons, but neither party is allowed to simply seize an unfair share of the marital funds.
The relevant portion of the Summons contains the following language:
“Neither party may dispose of any assets except (a) for the necessities of life or for the necessary generation of income or preservation of assets, (b) by an agreement of the parties in writing, or (c) for retaining counsel to carry on or to contest this proceeding.”
—Minn. Stat. Ann. § 518.091, subd.1(a)(1) (2015)
Therefore, if one spouse does empty the joined accounts, in essence, that spouse has taken marital funds. You are entitled to your share of those marital funds. These instances, it would be appropriate for your lawyer to request an accounting of the funds that were taken by your spouse. In certain situations, a temporary motion may be brought so that you are reimbursed your share of the marital funds taken by your spouse. Another option might be to address the reimbursement issue as part of the final property settlement.
In these instances, it is not just important to know that your spouse took marital funds, it is also important to determine what those funds were used for. In other words, if the funds were transferred with the intent to hide the funds, or if they were transferred in order to prevent you from getting your share, this is commonly referred to as “dissipation of assets.” In that instance, the burden would be on you to show that your spouse transferred the marital funds to someone else, or marital asset to someone else, “in contemplation of divorce:”
“If the court finds that either spouse’s resources or property, including the spouse’s portion of the marital property as defined in section 518.003, subdivision 3b, are so inadequate as to work an unfair hardship, considering all relevant circumstances, the court may, in addition to the marital property, apportion up to one-half of the property otherwise excluded under section 518.003, subdivision 3b, clauses (a) to (d), to prevent the unfair hardship. If the court apportions property other than marital property, it shall make findings in support of the apportionment. The findings shall be based on all relevant factors including the length of the marriage, any prior marriage of a party, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, needs, and opportunity for future acquisition of capital assets and income of each party.”
—Minn. Stat. § 518.58, subd.2. (2015)
If you face this challenge, it is important to have a good ally by your side. A knowledgable and experienced attorney will work diligently to see that your needs are met. In the courtroom and in mediation, I have fought successfully alongside both husbands and wives as they work through this difficult time. Please, contact my office today for a free consultation—by phone at 651-647-0087 or via our online contact form. I look forward to hearing from you.