When you were happily married, you probably happily shared just about everything without thinking twice. From your income to your leftover spaghetti, you doled things out evenly between the two of you, and worked together to solve your problems. You made decisions to spend money together, and you saved together for certain shared goals.
When things start to go badly, attitudes towards money change and, particularly if he’s the higher wager earner, you may find yourself in some hot water. If you’re staying at home to raise the children, you’re currently in school and not earning an income (or only working part time), or if you’ve significantly cut back on your career to help support the family, you’re not alone, but your situation is not uncomplicated.
Let’s talk a little bit about how money works in a marriage. Then, we’ll talk about how money works during separation, and what happens to the money during and after divorce.
How money works during a marriage
Basically, everything you earn, purchase, or acquire during the marriage is part yours and part your husband’s. Everything from your salary to your car, your house, and your retirement account contributions will be shared.
Of course, it’s a little more complicated than that. You can also have property that is classified as separate, if it is something you purchased or acquired before the marriage, or if it was something that someone gave to you (or that you inherited) either before or after the marriage.
You can also have an asset that is part marital and part separate. If you have something (like, for example, a retirement account) that you contributed towards prior to your marriage, it is separate. If you contribute anything to that retirement account after the date of your marriage, it is also part marital.
Let’s recap.
Separate Property
Separate property is anything that you owned prior to marriage, or anything that was given to you (and you alone—not to you and your husband jointly) as a gift an inheritance. If it was a gift or an inheritance, it doesn’t matter whether you acquired it before or after the marriage; what matters is just that it was intended to be given to or inherited by you and you alone.
Marital Property
Marital property is anything that you and your husband earned, acquired, or purchased during the marriage. It includes everything from the wages you earn to the retirement account contributions, and all the personal property, like the furniture, pictures, plates, silverware, rugs, and other knick knacks. When it comes to marital property, title doesn’t matter. So, even if you bought a house or a car and titled it in only one person’s name, if it was purchased during the marriage and payments were made on it using marital money (and almost all money, unless it was given or inherited by one spouse only, is marital money), it is a marital asset and both spouses have an interest in it.
Hybrid Property
Hybrid property is part marital and part separate. An asset is both marital and separate when it was earned, purchased, or acquired before the marriage, but marital money also went into maintaining it. A house or retirement accounts are prime examples of assets that we commonly see that are both marital and separate. In the case of a hybrid asset, we trace how much of the current value of the asset is separate, and then split the remaining portion that is marital. It sounds complicated, but this is a very common scenario, and lawyers are accustomed to figuring out how these divisions will work.
During your marriage, you and your husband probably shared everything, regardless of whether it was separate, marital, or hybrid, but that doesn’t change its classification.
How money works after separation
After separation, everything changes. Anything that you earn, purchase, or acquire after separation is separate property, and doesn’t get divided in the divorce. So, if your husband gets a big promotion or a bonus after your separation, you won’t receive a share of that promotion or bonus. (Except, of course, that any change in your or your husband’s income would result in an increase in child support, because it is in the best interests of the child to have the economic benefit of both parents. It won’t however, affect the way property is divided or any spousal support award that you might qualify to receive.)
Separation is an awkward period of time for most couples who are headed towards divorce. Technically, your money is your own. But what happens if you don’t have any money at all? Can he leave you high and dry, with no means to pay for either the rent (or mortgage) or any of the utilities? What if he clears out the bank account entirely, and starts having his paychecks direct deposited elsewhere? What are you supposed to do?
Can he take all the money away from me?
This is complicated. Because the marital accounts belong to both of you, technically, yes, he can take all the money out of your marital account and close it or leave it open but empty. There’s nothing illegal about either you or him taking any amount of money out of a joint account.
As far as his paycheck is concerned, since the money is separate property after separation, he can have it direct deposited elsewhere. In fact, it was certainly going to happen sooner or later regardless. Very few divorced men are comfortable leaving their ex wives on their bank accounts.
That being said, though, your husband can’t take and keep all of the marital money that was in the bank account on the date of separation. Half of it is rightfully yours, and your attorney could help you get it back in court, if your husband won’t give you your fair share willingly. Of course, that’s not ideal, because it costs money and takes time to go to court, but the judge definitely wouldn’t let him liquidate the bank account and leave you with nothing.
Most of the time, especially in cases where one party ends up without any financial support at all, what happens is that we file for divorce on fault based grounds (more on that coming up next) and then schedule a pendente lite (temporary support) hearing. At the pendente lite (or PL) hearing, we ask for temporary child support and spousal support, and we show the judge an income and expense sheet that will help give him an idea of how much money he has and what you have to live on. The idea here is not that the judge will listen to evidence of anybody’s misbehavior, but just that he will hear the immediate facts and make a temporary decision that will keep the wolves from the door and allow both of you to have as much money as possible as you move through the divorce.
It’s not always super easy, though.
Of course, if there’s not enough money on either side, there’s not going to be much that the judge can do. If there was no money in the marital account, or if there is more debt than money, things will probably be fairly difficult. The judge will look at income and expense sheets from both sides, and will certainly do his best to make sure that both parties are able to make ends meet, but the judge can’t magically make money appear that was never there to begin with.
Additionally, you’ll have to pay to retain an attorney for your divorce, and to cover your pendente lite hearing. To get into court for a pendente lite hearing, you’d have to file for divorce using fault based grounds, which means that you’ll have to retain an attorney for a litigated divorce. “Litigated” means that your divorce will be handled in the courts, rather than negotiated between the two of you. Of course, just because you file on fault based grounds and have a pendente lite hearing doesn’t mean that you can’t change your divorce over into a no fault divorce later on, if you become able to negotiate, but the attorney will require that you pay up front for a litigated divorce if your divorce starts out that way. It is much more expensive to hire an attorney for a litigated divorce than it is to hire an attorney for a no fault divorce.
In a no fault divorce, though, you can’t have a pendente lite hearing, because you can’t file for divorce until you’ve been separated for the statutory period (one year, or six months if you don’t have minor children and have a signed agreement). In a no fault divorce, once you file, you just move forward with scheduling your uncontested divorce hearing, so there’s no real need for a pendente lite hearing. Since you just go ahead and get divorced (and then abide by whatever your separation agreement or final order from the judge says), rather than establishing any kind of temporary support. Using fault based grounds gets you into court sooner, which means that the PL hearing will establish temporary support to last you until your separation period is up and you can move forward with your divorce.
If he takes all of the marital money away from me, is this abuse?
In order to get into court early and have a pendente lite hearing, you have to have fault based grounds. In Virginia, the fault based grounds you can use for divorce are adultery, sodomy, buggery, cruelty, desertion, abandonment, and apprehension of bodily hurt.
Depending on your situation, you may be able to use any number of these grounds to file for divorce. But, since we’re talking about your financial situation here, I’m going to concentrate on the grounds that I think would be the strongest to use in a case like we’re talking about, where the husband removes financial support from the wife.
I think it’s safe to say that this kind of behavior is abusive. However, “abuse,” isn’t technically a grounds for divorce. It’s a little more sophisticated than that. A lot of the fault based grounds are also things that are abusive, or fall under the heading of abuse, but you’ll have to be a bit more specific than that.
Usually, when we have a case like this, we use abandonment. If your husband has withdrawn financial support from you, it can be considered financial abandonment. You may also be able to use cruelty, depending on the situation. You should talk to a lawyer to find out what the best options might be for you.
The most important information is this: If he has removed your access to the money, it probably is abusive and, should you chose to, you probably do have fault based grounds that you could use to file for divorce.
How money works during and after divorce
During your divorce, whether you and your husband are negotiating a separation agreement or waiting for a judge to make a decision about how everything will be divided, your property will be classified as either separate, marital, or hybrid and, ultimately, divided. At that point, spousal support and property division would be considered, and child support, if you have children in common, will be awarded.
In a lot of ways, finances become a lot easier after the final divorce decree is entered. Even though you probably won’t be living the easy life (because you only have the money you had before you separated, and now it will be divided in two and supporting two separate households), you and your ex husband will both know what is required, and be under a court order to behave in a certain way. You’ll get what you’re entitled to receive, and the mystery will be removed.
At that point, you can start to make independent decisions about what you need to do to move your life forward. You can decide to go back to school, pick up more hours at work, or find a new job entirely. After the divorce, it’s entirely up to you.
I hope that helps! If you have any questions, or would like to talk to one of our licensed, experienced Virginia divorce and custody attorneys, please give our office a call at (757) 785-9761.