Often, our clients report that the final straw in the build-up of a decision to seek a divorce occurs when the other spouse begins draining or diverting bank or financial accounts or other assets (hereinafter “bank accounts”).
If the accounts being drained are separate accounts, the only way to formally put a tourniquet on the hemorrhaging is to use the automatic Mutual Restraining Order (MRO) that accompanies any divorce action in Georgia (as directed by each county’s Superior Court). [Note that an MRO which is entirely different than a Temporary Protective Order issued in cases of domestic violence or stalking allegations.] Every MRO in a Georgia divorce action will contain a provision that prohibits either party from disposing, trading converting, selling, assigning or otherwise removing any of the property belonging to the parties. This provision, of course, covers the diverting of funds from financial and bank accounts. Because separate accounts and joint accounts are both considered marital property (with some slight exceptions as when the separate account is completely funded with pre-marital funds, for example), a spouse in a divorce case in Georgia is – as a result of the binding MRO -- legally prevented from removing or diverting funds from his or her separate account.
An MRO applies to the other spouse only after a divorce (or separate maintenance) action is filed and then served on the opposite spouse. But, because the MRO will apply to the filing spouse immediately upon filing, the filing spouse should remember that he/she will be prohibited (except as explained below) from removing funds from a separate/joint account once that spouse files. So, important financial consideration should be taken before a spouse files for divorce if he/she intends to divert any funds.
One very significant provision that applies to Mutual Restraining Orders in the context of financial and bank accounts is that removal of funds from a bank account (separate or joint) is not prohibited if done in furtherance of the “ordinary course of business.” Exactly what constitutes “ordinary course of business” is not clearly defined in Georgia, but taken at its plain meaning, the term broadly allows for funds to be removed and used for traditional household and family expenses that have been typically incurred to finance household expenses up to the point of the divorce filing. Typically, payments for to an attorney in a divorce of family action for reasonable attorney fees will be considered an expense in the ordinary course of business.
As stated above, the MRO will also prevent dissipation and funds removal from a joint account. The opportunities to limit dissipation of funds from a joint account are more widespread, however, than in the case of joint accounts. If a spouse becomes concerned about his/her spouse draining joint bank accounts, it is perhaps advisable for the concerned spouse – before a divorce is filed -- to withdraw half of the funds in any joint accounts and place them in a separate account. A decision to do this should really only be made in consultation with a lawyer, but this is a surefire way to ensure that there will not be spousal overreach in removal or dissipation of funds. Note, however, that many married couples pay bills out of one or more of their joint accounts, and as such, careful thought must be given about how ACH or automatic bill-pay will be handled as well as how other family expenses will be paid for if half of the joint bank balance is withdrawn.
Nonetheless, by depositing half of the joint account(s) balance in a separate account, a spouse can stem the tide of account-draining and effectively make half of the account balances inaccessible to a spouse’s would-be efforts to drain accounts, overspend or otherwise remove funds not in the ordinary course of business. It is essential for a spouse who follows this course to keep in mind that the funds now deposited in a separate account should remain frozen by that depositing spouse so that the depositing spouse expends funds from that new separate account only to the extent such expenditures are necessary in the ordinary course of business.
It should go without saying that it is critical for anyone confronting a divorce or potential divorce to hire an experienced lawyer. There are many, many concerns that need to be fully considered and balanced out in a divorce case, whether the issue involved account-draining, parenting, custody, support, asset division, debt division or otherwise. While it is true, that good lawyers are not inexpensive, the consequences of trying to handle a divorce without a good lawyer can be devastating.
At Fox Firm, P.C., we take pride in our client-centric, results-oriented philosophy and have earned the trust of hundreds of clients in our 22 years in practice, whether the case is in Gwinnett County or elsewhere in metro Atlanta and the State of Georgia. Please feel free to contact us at 770.277.4883 if you are confronted with divorce or other family law matters and feel compelled to hire good attorneys. You can also reach the firm via email at firstname.lastname@example.org.