Can I Empty My Bank Account Before Divorce In Illinois?
As a divorce attorney in Schaumburg, I am frequently asked whether it is legal or wise to withdraw money from joint bank accounts prior to filing for divorce. This question usually comes from a place of fear or uncertainty. Oftentimes, one spouse worries about being cut off financially or about the other spouse spending down marital funds.
While it may seem like a protective measure, emptying an account before divorce can create serious legal and financial consequences under Illinois law. The courts in Illinois take a strict view of how marital assets are handled once divorce becomes likely, and improper withdrawals can result in penalties, contempt findings, or an unfavorable division of property later in the case.
Before taking any action with joint or marital funds, you must understand how Illinois law treats marital property, what constitutes financial misconduct, and the legal options available for protecting assets without violating court orders or fiduciary duties.
Understanding Marital Property Under Illinois Law
Under the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/503), all property acquired by either spouse during the marriage is presumed to be marital property, regardless of whose name is on the title or account. This includes income, savings, investments, and retirement funds earned or accumulated during the marriage. The law requires that all marital property be divided equitably, not necessarily equally, upon divorce.
When one spouse unilaterally withdraws or transfers funds from a joint account before filing for divorce, these actions can impact how the court assesses fairness in the eventual property division. Even if the withdrawn money is spent or hidden, the court has the authority to assign that amount back to the spouse who withdrew it as part of the equitable distribution process.
What Happens If A Spouse Empties A Joint Bank Account?
Illinois courts view the marital relationship as involving fiduciary duties between spouses. Under 750 ILCS 5/501(c-1), once a divorce petition is filed, neither party may transfer, conceal, or dispose of property without court approval, except for ordinary living expenses or attorney’s fees. However, even before a case is formally filed, courts have held that dissipating marital assets in anticipation of divorce may constitute financial misconduct.
“Dissipation” refers to the use of marital property for one spouse’s sole benefit for purposes unrelated to the marriage when the marriage is undergoing an irretrievable breakdown. For example, withdrawing all funds from a joint account to prevent a spouse from accessing the money can be considered dissipation. Under 750 ILCS 5/503(d)(2), courts must consider dissipation when dividing property, often offsetting the withdrawn amount from the offending spouse’s share of marital assets.
This means that even if a spouse successfully drains the account, the court may later reduce that person’s award by an equivalent amount, effectively requiring repayment through the final division of property.
Protecting Financial Interests The Right Way
There are lawful methods for protecting assets and ensuring access to funds during divorce without violating Illinois law. If there is concern that one spouse may drain accounts or hide assets, the appropriate step is to seek a temporary restraining order or an injunction under 750 ILCS 5/501(a)(2). This allows the court to freeze certain accounts or prevent either spouse from transferring property until the matter is resolved.
In situations where one spouse has no independent source of income, temporary support can also be requested under 750 ILCS 5/501(a)(1) to ensure financial stability while the case is pending. These court-authorized remedies provide protection without engaging in conduct that might later be viewed as misconduct.
How Courts View Financial Behavior During Divorce
Judges in Illinois expect both parties to act in good faith during divorce proceedings. Financial transparency and cooperation are essential to maintaining credibility before the court. When one spouse takes unilateral action, such as emptying a joint account, hiding money, or transferring funds to family members, it can harm that spouse’s credibility and lead to severe consequences, including contempt of court or sanctions.
Additionally, such conduct may impact other aspects of the case. For instance, if the spouse seeking maintenance (alimony) has misused marital funds, the court may consider that behavior when determining eligibility or amount. Similarly, it may affect the division of property and debt.
Why It’s Important To Document Everything
If funds are withdrawn for legitimate reasons, such as paying rent, medical expenses, or legal fees, documentation is critical. Bank statements, receipts, and written explanations should be preserved to demonstrate that the expenditures were necessary and reasonable. Courts evaluate the purpose and timing of withdrawals to determine whether they were proper.
For example, withdrawing money before a divorce filing to pay regular household bills is generally acceptable. However, transferring funds to a secret account or spending on unrelated personal luxuries while the marriage is breaking down can be deemed dissipation.
The Value Of Legal Guidance Before Acting
Emptying a bank account without understanding the legal implications can turn a straightforward divorce into a contentious and expensive dispute. A skilled divorce attorney can provide effective strategies to protect your financial interests while ensuring compliance with Illinois law. This might include freezing accounts, filing for temporary orders, or documenting legitimate withdrawals to prevent false allegations of misconduct.
Taking preemptive action under legal advice is always better than facing the court’s scrutiny after funds have already been withdrawn.
FAQs on Emptying Joint Bank Accounts Before Divorce in Illinois
Is It Illegal To Withdraw Money From A Joint Account Before Divorce?
Withdrawing funds from a joint account is not automatically illegal, but doing so for the purpose of depriving a spouse of access or hiding assets can be treated as financial misconduct under 750 ILCS 5/503(d)(2). Courts may require repayment or adjust the property division to correct the imbalance.
What Happens If One Spouse Empties The Account Before Divorce?
If a spouse drains a joint account in anticipation of divorce, the court may consider that as dissipation of marital assets. The amount taken can be charged against that spouse’s share during the property division, or the court may order reimbursement.
Can A Court Freeze Bank Accounts During A Divorce?
Yes. Under 750 ILCS 5/501(a)(2), a judge can issue temporary restraining orders or injunctions to prevent either spouse from transferring or concealing marital assets. This measure ensures that funds remain available for equitable distribution.
Can Money Be Withdrawn For Living Expenses During Divorce?
Reasonable withdrawals for necessities such as rent, groceries, or utilities are generally permitted. However, large or unusual withdrawals made without court approval or the other spouse’s knowledge may raise concerns and could be challenged.
What Should Be Done If A Spouse Hides Or Transfers Money?
When one spouse hides assets or transfers money to avoid division, the court can impose penalties, including fines, contempt findings, or an unequal division of property to compensate the other spouse. Subpoenas, discovery requests, and forensic accounting can uncover concealed assets.
Does Dissipation Only Apply After A Divorce Is Filed?
No. Dissipation can occur before or after the filing, as long as the marriage was undergoing an irretrievable breakdown at the time of the improper spending or transfers. Courts evaluate the timing and intent of the withdrawals.
Can Emptying A Joint Account Affect Child Support Or Maintenance?
Yes. Financial misconduct can influence other financial aspects of the divorce, including maintenance and child support. A spouse who drains accounts may be viewed as acting in bad faith, which can impact credibility and support calculations.
How Can A Spouse Be Protected From Financial Misconduct?
An attorney can file motions to preserve assets, request injunctions, and demand full financial disclosure. Legal representation ensures that both parties adhere to court rules and that any misconduct is promptly addressed.
Call The Law Office Of Fedor Kozlov Today
At the Law Office of Fedor Kozlov, protecting financial rights during divorce is always a priority. Illinois courts expect fairness, honesty, and compliance with the law — and those values guide every case handled by this firm. Acting rashly with marital funds can create lasting problems, but an informed legal strategy can prevent them.
Contact our Chicago divorce attorney at the Law Office of Fedor by calling (847) 241-1299 to schedule a consultation. The Law Office of Fedor Kozlov represents clients in Schaumburg and throughout the Chicago area, providing skilled and strategic representation in all areas of Illinois family law.
