By Joshua E. Stern, Principal and Managing Partner, Divorce and Family Law Attorney

We’re often asked by potential clients if their spouse can legally withhold income, assets and other property. As tensions increase in a divorcing household, it’s unfortunately common for spouses to fight about assets and, at times, for one spouse to threaten economic harm on the other. Regardless of the reason, it is best to avoid these discussions, as they are rarely productive.

The good news is that your spouse almost certainly cannot take all of the marital assets and leave you with nothing. The threat is typically no more than a far-fetched fantasy. Your right to access marital property and income is a matter of law, not your soon-to-be-ex’s discretion. There are a multitude of reasons for this, as explained below.

Four Reasons the Answer is “No”

1. Marital property is jointly owned by the spouses and only a court-approved agreement or judgment can bind the parties.

Property acquired during the marriage is presumed to be marital. The court has jurisdiction over marital property, meaning the court has the ability to make rulings on who keeps or sells what property and when. If a spouse could unilaterally take property, it would nullify the court’s authority. A judge would only be left to allocate that property that had not been taken. The result would be ineffectual courts and a rush by both spouses to grab as much money as they could, as quickly as they could. The very concept would undermine a judge’s authority and is not the law in Illinois. Your soon-to-be-ex is not the final arbiter of who keeps what.

2. The law provides for emergency interventions to undo any wrongful withholding of marital assets or income.

Even if your spouse drains all the bank accounts, it does not mean the bank accounts stay drained for long. Illinois law expressly permits the filing of a restraining order and injunction for anyone disposing, concealing, transferring, encumbering or using property outside of the ordinary course of business. This means a judge can enter an order requiring money to be placed back into bank accounts, for future deposits to be routed to specific accounts, to limit unapproved transactions, or to otherwise enter any order to remedy financial harm and prevent its reoccurrence. Because these petitions can be heard on an emergency basis, it avoids the common delays in litigation, such as scheduling court dates and waiting weeks or months for a hearing. Emergency petitions are often decided the same day they are presented. Thus, even if a spouse begins redirecting their income or changing access to shared accounts, a court may immediately intervene to right the wrong.

3. If your spouse has spent the money in their control for non-marital purposes or otherwise engaged in waste, the transactions may amount to dissipation.

Dissipation is the use of marital funds for a non-marital purpose during the breakdown of the marriage. This money would likely be owed back to the marital estate prior to division, amounting to a credit to the other spouse and debit to the wasteful spouse. Stated differently, money hidden from another spouse does not disappear nor leave the court’s purview. Any benefit to the spouse hiding the money is likely to be short-lived.

4. It is possible that money taken by your spouse may be treated as a pre-distribution.

Both parties are entitled to an equitable share of the marital estate. If one party assumes assets early in the case, there is no reason to believe that this cannot or should not be credited against any final distribution they may get. Even if the money was not dissipated, it is not a gift to the spouse who took it.

Of course, the above explanations concern the hiding of assets that are known to the other spouse. The hiding of assets unknown to the other spouse is typically addressed during the case with the use of discovery, which is the request for relevant information and documents. This is best addressed with an attorney, as discovery strategy is very case specific.

Don’t Let Financial Threats Stand in Your Way

If your spouse is attempting to withhold money or assets, you are not without options. Illinois law protects your right to a fair division of marital property, and the courts have mechanisms in place to intervene when necessary. If you are facing financial withholding or concerns about asset division, seeking legal counsel can help ensure your rights are protected. Contact me today to discuss your situation and take the next steps.

Appointments are available at our new office at the Davis Center in Evanston, or at our offices in Chicago, Lake Forest or Oak Brook. Start by requesting a free consultation or calling (847) 868-9584.

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