WHAT CAN YOU DO WHEN YOUR HUSBAND/WIFE ACCESSES MARITAL FUNDS WITHOUT YOUR KNOWLEDGE OR PERMISSION?
Massachusetts is an equitable jurisdiction, and any assets held jointly, or in one party's name individually, are all marital assets. These assets may include interests in real estate, pensions, retirement accounts, bank accounts, or various personal property. In order to preserve these assets, and maintain the status quo, an automatic financial restraining order is imposed on both parties in either a divorce or separate support action. It is effective as to the Plaintiff when he/she files his/her complaint, and on the Defendant when he/she is served or accepts service of the complaint.
This rule, Mass.Supp.Dom.Rel.P.411, prohibits either party from selling, transferring, or encumbering any asset unless it is required for reasonable living expenses, reasonable attorney's fees, the ordinary course of business, or by written agreement of the parties or by a court order. This same rule also prohibits either party from changing or removing the other party as a beneficiary on life insurance policies, pensions, retirement plans, or retirement investment accounts. A party is also prohibited from removing his/her spouse or children from any medical, dental, life, automobile, or disability policies. This "restraining order" is found on the first page of the Divorce/Separate Support Summons.
In most cases, both parties comply with the restraining order, and do not access any financial accounts impermissibly. However, there are occasions, when a party disregards the court order, accessing, or even depleting marital assets, either before a complaint has been filed, or after he/she has been served. Sometimes one party will attempt to improve his/her financial situation by moving assets from a joint account to an individual account, from one bank to a different bank, change the names of beneficiary(ies), or withdraw the funds and give them to someone else to hold for his/her benefit. If a complaint for separate support or divorce has not been filed, but there are concerns about dwindling bank accounts, removal of the husband's/wife's name from any accounts, and/or access to safety deposit boxes, it may be necessary to seek a court order in order to preserve these assets to prevent further dissipation. Prior to filing any complaint, and request for specific relief, it is necessary to have some information to substantiate the need for such an order. Actual bank or other account statements are important, as they provide information as to the entity that holds the funds, name(s) on the account(s), account number(s), balance of a certain date, and recent transactions. This information is essential to determine the type of relief that is needed, and to substantiate the need for relief to the Court.
In the event that only one party's name is on any real estate, and the property is either listed for sale, or a closing date has been set, it may be necessary to seek a real estate attachment or other lien on the property, and/or a court order preventing the sale. A court can also order that any proceeds from the sale be held in escrow until a determination has been made as to who is entitled to what funds. An attachment may be obtained in several courts, but if there is a domestic relations matter that is or will be filed in the probate court, the attachment should originate from the probate court as well. Once the attachment has been ordered, it is necessary to file it in the appropriate Registry of Deeds, so any interested individuals will have notice that the attachment exists, and that clear title will not be available until that attachment, and any other liens, encumbrances, etc., are removed/discharged.
Bank accounts, employment earnings, annuity accounts, 401k's and similar accounts involve third parties, such as banks, investment companies, unions and/or plan administrators. It is also possible to attach goods or other effects in another's control. The third party "holds" and/or manages the accounts/monies and/or goods. A trustee process may be obtained from the court against any "trustees", who upon receipt of the summons for trustee process, must freeze the account, and file an accounting in court stating exactly the amount of monies and/or goods they are holding.
At the same time one or more of these actions are filed in the probate court, it may be advisable to seek a financial restraining order as well, to prevent the other party, and perhaps others, from encumbering, dissipating, liquidating, or transferring any of the assets identified in the pleadings.
In addition to the appropriate court filings of a complaint and other required documents, it will be necessary for the party seeking relief to file a detailed affidavit as to the reasons a party feels he/she will be irreparably harmed if such relief is not granted. The affidavit must also identify what actions the other party(ies) has/have undertaken that makes it necessary to have such relief granted. It is possible to obtain such orders ex-parte (without notice) if it can be established that such notice may result in a party to access the funds/accounts while awaiting a hearing date. While the court may grant the requested relief, there will be an additional hearing scheduled to allow the other side to seek to dismiss/vacate any orders entered attaching or freezing the assets.
Requests for attachments, financial restraining orders, and/or trustee process, should be made only if there is a danger that another party will dissipate, damage, encumber, and/or otherwise access marital assets, and/or has done so in the past, and will likely continue to do so, unless steps are taken to stop him/her from doing so. In the vast majority of cases, this is not an issue, and both parties abide by the Rule 411 restraining order. However, in the event court intervention is needed, an attachment, trustee process, and/or restraining order are available from the probate court.