How Do You Divide Bank Accounts in a California Divorce?
Learn how California law divides checking, savings and credit union accounts in a divorce
Money in checking, savings or credit union accounts are similar to any other asset in a divorce
Step one is to determine whether the money is community property, separate property or a mixed character of both. Step two is to determine how to divide the account.
What if my name is not on the bank account?
The name on an account does not necessarily control whether the money in the account is community property, separate property or both.
Frequently spouses will say they "each have their own accounts" and then assume the account belongs to the spouse with his/her name on the account. Instead of focusing on the name, the focus should be on the source of the money in the account.
The characterization of the account is based on when the funds in the account were acquired or how they were acquired. If the funds in the bank account are traceable to a separate property source, were gifted or inherited, or were earned before marriage or after separation, those funds may be separate property. If a spouse acquired the funds during the marriage and the funds are from a community property source, then the funds will be community property.
Sometimes the account will contain both community property and separate property funds, especially if a spouse continues to deposit his/her earnings earned after the date of separation into the account.
What about division of money in bank accounts after separation?
After separation, many spouses continue to deposit their separate earnings into a bank account. Those funds are usually considered the separate property of the spouse who deposited the earnings. The balance at the date of separation generally identifies how much community property funds are in the bank account.
Absent evidence of traceable separate property funds in the account, the balance as of the date of separation should be equally divided between the parties.
What if I do not have access to or information about the bank accounts?
Spouses are fiduciaries to each other so they are not permitted to have secret accounts or to otherwise conceal information regarding bank accounts. To do so exposes that spouse to a breach of fiduciary duty claim.
In addition, during the divorce, each spouse has an affirmative obligation to disclose to the other spouse all assets and debts, as well as income and expenses. Accounts are assets and nondisclosure is not an option. This happens in a preliminary declaration of disclosure, updates to that disclosure when there are material changes, and a final declaration of disclosure. Spouses may waive by mutual agreement the final declaration of disclosure requirement.
What if my spouse refuses to disclose account information during the divorce?
You can obtain information regarding the accounts through the discovery process. Discovery is the formal request for information and it includes interrogatories (written questions), request to produce documents, request to admit facts or genuineness of documents, oral depositions, subpoenas to a person or entity, and more.
You can obtain the account information from your spouse directly through discovery served on your spouse, and/or by issuing a subpoena to the financial institution directly.
This is especially helpful and likely necessary if you did not have access to the accounts during the marriage or you are not as knowledgeable about your finances.
We hope you found this information on dividing bank accounts in a divorce helpful
Associate, Amanda Naples and Partner, Yvette Ochoa contributed to this article.
Please check out our other guides regarding division of assets and debts.
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