In Florida the court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors, including, inter alia, “(i) The intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within 2 years prior to the filing of the petition.” F.S. 61.075(1)(i).
Moreover, in counties such as Collier, Lee, and Charlotte, an automatic standing order is signed and filed when a divorce case is opened that expresses, among other things, that parties should maintain the status quo. That is, no one touch anything, unless and until there is an agreement in writing, signed by the parties, or further court order.
If your spouse violates this order, or commits one of the above, recourse such as contempt and enforcement are available, as well as an unequal distribution in favor of the other party.
Can A Spouse Legally Empty A Joint Bank Account Before Or During A Florida Divorce?
Before a divorce is filed, there is no mechanism to prevent anyone from emptying a bank account. However, as stated in the statute, there is a two (2) year look back period. So if a party does, for example, even take what they believe to be their half of an account it is always strongly advised that they place that money in a separate account that they can maitntain records for, safeguard the funds, and preferably not spend the money. At some point, parties will be asked to prove and explain where the funds went, if they were spent, and for what purpose in order to either prove up, or defend, claims of dissipation, waste, etc. If no one ever files, then parties are free to do with their items whatever they wish, as there is no state mechanism that in place telling people what to do with their assets, for example, other than perhaps rules the bank sets for the account. However, again, it is worth noting that if anticipating divorce, then there can be repercussions later in the divorce for pre-filing withdrawals, etc.
Sample standing order language looks something like the following:
“Neither party will conceal, damage, nor dispose of any asset, whether jointly or separately owned, nor will either party dissipate the value of any asset except by written consent of the parties or an order of the court…Neither party will conceal, hoard, nor waste jointly owned funds, whether in the form of cash, bank accounts, or other highly liquid assets, except said funds can be spent for the necessities of life.” Standing Temporary Domestic Relations Order Without Minor Children (sec. 2), 20th Judicial Circuit of Florida, Jan. 20, 2015.
This order goes into effect immediately upon the judge signing this order, which is typically filed immediately upon the opening of a divorce case. filing for divorce. The parties may not empty a joint bank account or they may face sanctions, however there is case law that expresses that folks may use assets in during the course of a divorce in order to do things like pay bills, keep themselves fed, even pay attorney’s fees. See Plichta v. Plichta, 899 So. 2d 1283 – Fla: Dist. Court of Appeals, 2nd Dist. 2005
“The parties may spend their income in the ordinary course of their personal and family affairs. Any party who violates this order will be required to render an accounting and may be later sanctioned for wasting a marital asset.” Standing Temporary Domestic Relations Order Without Minor Children (sec. 2), 20th Judicial Circuit of Florida, Jan. 20, 2015.
Generally, if parties are able to maintain the status quo without touching anything, then that is what the court is ordering and how the divorce action should proceed. However, if a person is faced with a financial hardship that requires going against this standing order, relying on the case law, then it is strongly advised that parties maintain good records to explain their actions. It is always advised that parties simply follow the standing order. If a person is faced with a financial situation that requires court intervention sooner, then it is recommended that parties discuss options for temporary relief including, but not limited to, Motions for things like Injunction Against Disposal of Assets, Contempt of Standing Order, Interim Partial Distribution, Sale of Real Property and Escrow of Proceeds, etc. just to name a few.
Again, the general standing order allows both parties to function as normally as possible during the course of the divorce. No party may put the other in dire financial situations by emptying accounts or wasting money from the marital estate. Fla. Stat. § 61.075 (1)(i).
Advising Your Spouse To Not Empty The Joint Bank Accounts In A Florida Divorce
At the beginning of a divorce, a strongly worded letter should go out to your spouse advising them that any failure to pay a current bill, closure of an account, or unnecessary withdrawals from any existing account will have serious penalties.
The spouse should be warned that any financial shenanigans will be met with a request for a temporary injunction and a dissipation of assets claim.
Both spouses and/or their attorneys should convene to discuss what the “new normal” should be for the parties’ finances as the divorce proceeds.
Undoing The Emptying Of A Joint Bank Account In A Florida Divorce
If a spouse does not heed the judge’s orders in the standing order, then consider a motion for a temporary relief as expressed above.
An injunction is “[a] court order commanding or preventing an action.” Black’s Law Dictionary (11th ed. 2019).
A temporary injunction will restrain a spouse from selling, wasting, concealing or disposing of marital assets.
A Florida judge may grant a temporary injunction if the accusing spouse can show that they will suffer immediate and irreparable harm to the marital estate. It is important to frame how the lack of access to funds will cause an injury (failure to pay for medical care) or damage to property (failure to pay gas or electricity will cause damage to the marital home).
Injunctions are issued when a party can show that they are “at risk of immediate and irreparable injury and that [they] would have no adequate remedy at law should the [spouse] dissipate assets in which [they] were entitled to an equitable share.” Lerner v. Dum, 220 So. 3d 1202 (Fla. Dist. Ct. App. 2017).
In order to show immediate and irreparable incoming harm, the facts in your pleading have to be specific enough to convince a judge that an injunction is necessary. Your pleading must “define the injury, state why such injury is irreparable or provide reasons why the order was granted without notice.” Lerner v. Dum, 220 So. 3d 1202 (Fla. Dist. Ct. App. 2017).
In Bansal v. Bansal, the husband attempted to transfer over eight million dollars out of the joint accounts by forging the wife’s signature. The wife asked for an injunction, and told the court she was afraid the husband would further drain or transfer their marital assets. The court ordered an injunction to protect the marital estate. Bansal v. Bansal, 748 So. 2d 335, 337 (Fla. Dist. Ct. App. 1999).
In another case, Sandstrom v. Sandstrom, the wife stated that the husband had given his new girlfriend an interest in the marital residence, their ranch in Wyoming, and their office building. The court decided that transferring assets would inhibit the equal distribution between the husband and wife, so they ordered a temporary injunction to prevent the husband from further transferring or dissipating the assets. Sandstrom v. Sandstrom, 565 So. 2d 914, 915 (Fla. Dist. Ct. App. 1990).
In addition to showing irreparable harm, the party asking for an injunction must post bond.
“No temporary injunction shall be entered unless a bond is given by the movant in an amount the court deems proper, conditioned for the payment of costs and damages sustained by the adverse party if the adverse party is wrongfully enjoined.” Fla. R. Civ. P. Rule 1.610 (2)(b).
The court will determine an amount for the bond and the movant must pay within 5 days unless the court says otherwise. Usually, bond will be a cash deposit with the clerk. If the court later decides that the injunction was unnecessary, the movant will have to pay the other party’s costs and damages.
While an injunction can certainly forbid the future emptying of bank accounts, it can also look backwards and order that the bank accounts be restored in order to provide the previously accessible funds to both parties. Failure to restore the emptied bank account to the ordered balance will result in a finding of contempt and possible jail time.
In my experience, the party who empties a joint account is usually the financially dominant party. A motion for a temporary injunction should also include a request for temporary alimony, as future funds are likely to be withheld as well.
“In a proceeding for a dissolution of marriage, the court may grant alimony to either party in the form or forms of temporary, bridge-the-gap, rehabilitative, or durational alimony, as is equitable.” Fla. Stat. § 61.08 (1)(a).
Temporary alimony “furnishes a spouse—from whom the other spouse has withdrawn support—with the means of living while the rights of the spouse in need are being adjudicated.” Williams v. Williams, 365 So. 3d 1235, 1238 (Fla. Dist. Ct. App. 2023).
Essentially, temporary alimony ensures that you have financial support until a final judgment is reached on your divorce.
Finally, you may need to file for temporary support to cover attorney’s fees.
“The court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees, suit money, and the cost to the other party of maintaining or defending any proceedings…” Fla. Stat. § 61.16 (1).
If you are left with no resources, then an injunction, temporary alimony, and attorney’s fees are available for the court to award after it considers both yours and your spouse’s circumstances.
What Happens If A Spouse Violates The Injunction?
If a spouse violates a temporary injunction by draining the joint bank accounts, you should immediately file a Motion for Civil Contempt/Enforcement. These motions can be filed simultaneously using Florida Family Law Form 12.961.
A Motion for Civil Contempt is intended to ensure that your spouse complies with the court’s orders.
“The use of civil contempt sanctions under this rule shall be limited to those used to compel compliance with a court order or to compensate a movant for losses sustained as a result of a contemnor’s willful failure to comply with a court order.” Fla. Fam. L.R.P. Rule 12.615 (a).
In order to be heard, the motion must comply with procedural rules. It must include essential facts indicating that the court ordered an injunction, the other spouse has violated the injunction, and that the movant spouse has provided notice to the other spouse.
The notice requirement is specific. It must include the time and place of the hearing, whether electronic recording or a court reporter will be provided by the court, and the specific language required by the court. Fla. Fam. L.R.P. Rule 12.615 (b).
At the hearing, the court will hear both sides of the story to determine whether the motion should be granted. If they do, the court can impose sanctions, including attorney’s fees, suit costs, compensatory or coercive fines, jail time, or other forms of relief as appropriate. Erskine v. Erskine, 344 So. 3d 566, 570 (Fla. Dist. Ct. App. 2022).
If you are the party seeking to hold the other party in contempt, then the focus of proof to the court should be on (a) what is the term and/or court order that expresses the other parties’ obligation(s), (b) establish that the other party had notice of that obligation, (c) that they knew of the obligation and what they were required to do, (d) that they have had the present ability to comply with that obligation, and finally that (e) person is just simply purposefully and willfully choosing to not comply. If proven, then ask the court to make a finding that the person is in contempt, then ask for your recourse.
If you have had a Motion for Civil Contempt filed against you, it is your job to prove, inter alia, that you didn’t violate the injunction “willfully.” If you can show there was no willful violation, the court will likely not impose sanctions or other fines.
“Where there is a failure to pay support or to pay support on a timely basis but the failure is not willful, nothing in this rule shall be construed as precluding the court from granting such relief as may be appropriate under the circumstances.” Fla. Fam. L.R.P. Rule 12.615 (g).
If the court grants the Motion for Civil Contempt and imposes sanctions, fines, or incarceration, they will also include a Purge clause in the order. A Purge clause offers the offending spouse an opportunity to comply with the injunction based on his ability to pay. The spouse has a reasonable time to comply. Fla. Fam. L.R.P. Rule 12.615 (e).
However, a Motion for Civil Contempt alone cannot enforce an equitable distribution plan. They are intended to ensure compliance with previous court orders. By contrast, a Motion for Enforcement is intended to make sure that either the assets will be recovered or that the court will adjust the distribution of assets in favor of the movant spouse.
This is why you should file both motions together using the Family Law Form.
“Although courts can use contempt powers to compel specific actions to facilitate property transfers—they can, for example, use contempt to compel return of personal property—they cannot convert a general payment obligation into something enforceable by contempt simply by characterizing it as an obligation to perform a specific action.” Schroll v. Schroll, 262 So. 3d 832, 835 (Fla. Dist. Ct. App. 2018).
When deciding distribution of assets, the court may consider the intentional waste, depletion, or dissipation of those assets by a spouse. Fla. Stat. § 61.075 (1)(i).
“[I]f a spouse intentionally dissipates a marital asset, the trial court has the authority and discretion to assign the dissipated asset to the dissipating spouse as part of that spouse’s equitable distribution.” Martinez v. Martinez, 219 So. 3d 259, 262 (Fla. Dist. Ct. App. 2017).
When you file these motions together, as a Motion for Contempt/Enforcement, the court has the opportunity to both sanction the offending spouse and ensure that the movant spouse receives a fair cut of the final distribution of assets. More than likely, however, if not addressed earlier in the litigation by way of a motion for relief, a person can still, and should, make claims of dissipation, waste, etc. at trial. The non-offending party should, among other things, come ready with, for example, a forensic expert to trace the funds, attribute a value, and then distrubte that value in the offending spouses column of an ED Spreadsheet, such that the non-offending spouse gets an unequal distribution of something else on the spreadsheet, or by way of equalizer payment, to make up for the offending spouses actions.
The Real Solution To A Spouse Emptying Joint Bank Accounts In A Florida Divorce
Any debt incurred before the petition for divorce is filed will be deemed marital debt and, thus, will be divided in the final divorce judgment.
“Marital assets and liabilities include…assets acquired and liabilities incurred during the marriage, individually by either spouse or jointly by them.” Fla. Stat. § 61.075 (6)(a).
“[T]he cut-off date is the date of the filing of the petition for dissolution of marriage.” Rao-Nagineni v. Rao, 895 So. 2d 1160, 1161 (Fla. Dist. Ct. App. 2005).
Division of assets is inevitable, so you may simply withdraw your half of the joint account and deposit that money in your individual account. Of course, this may trigger your spouse to file a motion for temporary alimony or ask for an injunction as described above.
In the end, Florida courts will primarily adjust the distribution of your assets to consider an intentional emptying of the accounts. This allows for an equitabledistribution of your assets even if your spouse attempts to empty a joint account. Fla. Stat. § 61.075 (1).
If your spouse has emptied a joint bank account or even has threatened to drain a joint bank account, you need to be ready for an acrimonious and contested divorce.
Contact my Naples, Florida family law firm to schedule a free consultation with an experienced Florida divorce attorney.
With nearly two decades of legal experience and over eight years as a licensed Florida attorney, Russell Knight and his team have helped countless clients navigate and maintain their finances throughout complicated divorce proceedings.
Cases, Statutes, and other Sources Referenced in the What To Do When A Spouse Empties Joint Bank Accounts In A Florida Divorce Article
Lerner v. Dum, 220 So. 3d 1202 (Fla. Dist. Ct. App. 2017)
Bansal v. Bansal, 748 So. 2d 335 (Fla. Dist. Ct. App. 1999)
Sandstrom v. Sandstrom, 565 So. 2d 914 (Fla. Dist. Ct. App. 1990)
Williams v. Williams, 365 So. 3d 1235 (Fla. Dist. Ct. App. 2023)
Erskine v. Erskine, 344 So. 3d 566 (Fla. Dist. Ct. App. 2022)
Schroll v. Schroll, 262 So. 3d 832 (Fla. Dist. Ct. App. 2018)
Martinez v. Martinez, 219 So. 3d 259 (Fla. Dist. Ct. App. 2017)
Rao-Nagineni v. Rao, 895 So. 2d 1160 (Fla. Dist. Ct. App. 2005)
Black’s Law Dictionary (11th ed. 2019)
Frequently Asked Questions About Spouses Emptying Joint Bank Accounts In A Florida Divorce
Is it legal for my spouse to empty our joint bank account before a Florida divorce is filed? Yes, however if divorce is contemplated, a two year lookback applies.
Is emptying an account still legal after a divorce has been filed? No, not usually. Depending on the judicial circuit you are in in Florida, most circuits have a standing rule that goes into effect upon a filing for divorce. The rule doesn’t allow either spouse to conceal, damage, or dispose of assets, but it does allow each spouse to use joint funds for normal living expenses. But if you do have to sell something non-essential to maintain something essential (selling a motorcycle to keep the electricity on) keep good records of it.
What is a temporary injunction and how can it help me if my spouse empties our joint bank account? A temporary injunction is a court order that stops a spouse from selling, wasting, concealing, or disposing of any marital assets. You must provide evidence to the court that such an order is necessary to avoid harm to the marital estate before distribution of assets can occur. A temporary injunction can also look back to restore emptied joint accounts if necessary.
Can a Florida court order my spouse to put the money back in our joint account? Yes, a Florida divorce court can order your spouse to return the money to an emptied joint bank account. If your spouse doesn’t do so, they can be held in contempt of court, face sanctions, or even possible jail time.
When should I file a Motion for Contempt/Enforcement? You should file these motions immediately after a spouse violates an injunction by emptying a bank account or dissipating other assets. These motions allow the court to sanction the offending spouse, setting up the litigation later for the proper adjustments needed to establish an equitable distribution whether either by agreement or at trial.
What can I do proactively before a divorce if I think my spouse may empty a joint bank account?. You could empty what you believe in good faith to be your half of the joint bank account, and place it in an account in only your name. The idea would be to safeguard those funds, try very hard not to touch them until either a written agreement signed by the parties or a court order expressing how it will be distributed.
