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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.
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