When couples are getting a divorce in California, asset and property division is usually a significant concern. Protecting hard-earned money and other assets, including income in a joint bank account, is expected.

In most divorces, joint bank accounts are divided equally, 50/50, but it's not generally that simple. California's property division laws attempt to split everything down the middle, rather than dividing assets and debts according to what is fair or equitable. This includes checking, savings, and credit union accounts.

Suppose you were the only spouse making income during your marriage. In that case, you will still have to divide all marital assets 50/50 with your ex-spouse in a divorce, but not separate property. Community property describes any assets you and your spouse acquired after you married.

Thus, a joint bank account is deemed community property because you own it with your spouse. However, suppose you have a bank account in your name alone.  In that case, it could be deemed separate property and not at risk of being divided, but it will depend on circumstances, such as whether it was comingled.

However, if you are going through a divorce in California, you can decide how to divide your joint bank account through a compromise and settlement agreement with your spouse.

A quick rule to remember is that you don't want a family law court making this decision for you. So please don't force the court to rule on it; negotiation with your spouse is typically the best option. Simply put, before you ask a court, you and your spouse can work together and compromise on how to divide the following:

• all of your marital property;
• joint bank accounts;
• savings accounts;
• credit union account;, and
• retirement savings.

This could avoid having a court split everything in half. However, if you can't reach an agreement, the court will use the 50/50 rule in splitting a joint bank account in most cases. Let's review this subject in more detail below.

Determining Whether Money is Marital or Separate Property

The first step to divide bank accounts in a California divorce is determining whether the money is community property, separate property, or a mixed, called comingled.  The next step is to decide how to divide the account.

Any money in checking, savings, or credit union accounts is similar to any other asset in a divorce.

Suppose your name is not listed on the bank account. In that case, it does not necessarily determine whether the money in the account is community property, separate property, or both.

Often, couples getting divorced claim they have an account in their name only and assume it's separate assets that can't be divided.  This is a common myth. It's not the name on the account that matters as much as the source of the money in the account.

Consider the following when determining whether money in a bank account is community or separate property:

• If the funds in the bank account were acquired during the marriage and from a community property source, the funds are then marital property;
• If the funds in the bank account were earned before marriage, gifted, or inherited, the funds could be considered separate property.

Sometimes the bank account will contain both community and separate property funds. This often occurs when one spouse continues to deposit their earnings in the account after the date of separation.

However, these funds are typically considered the separate property of the spouse who deposited the earnings. Thus, the balance in the bank account at the date of separation is viewed as the amount of community property funds, which should be divided equally between spouses.

What If a Spouse Does Not Have Access to a Bank Account?

Spouses need to realize they have legal obligations to each other, such as a fiduciary duty. California Family Code 721 describes fiduciary responsibilities, and If either spouse breaches their fiduciary duty, legal remedies are available.

Simply put, spouses are fiduciaries to each other. This means they are not legally permitted to have secret bank accounts or prevent access to their spouse. Suppose a spouse conceals information regarding bank accounts. In that case, they could be exposed to a breach of fiduciary duty claim.

During the California divorce process, each spouse must disclose all assets, debts, income, and expenses to each other.

This occurs in a preliminary declaration of disclosure, updates, and the final declaration of disclosure, which a mutual agreement can waive.

Suppose your spouse refuses to disclose bank account information during the divorce.  In that case, you can get the information through the discovery process, a formal request for information. It includes the following:

• Interrogatories, which are written questions;
• Oral depositions;
• Request to produce documents,
• Request to admit the documents are genuine;
• Subpoenas to a person or an entity.

In other words, you can get the bank account information from your spouse through discovery served on them or through issuing a subpoena to the financial institution.

So, if you did not have access to the bank account during the marriage or were not the primary spouse dealing with financial issues, you can use these methods to obtain the information.

How Can You Protect Your Assets in a California Divorce?

Some common strategies can be helpful to protect your income and assets during California divorce proceedings.

One way is to keep a separate bank account after getting married, but you must be careful not to commingle the assets, or it could be considered marital property. Simply put, you need to keep this account separate property.

Suppose you are considered high net worth or bringing significant assets or debts into a marriage. In that case, consider a prenuptial or postnuptial agreement that lays out the details of dividing them.

These legal documents allow you and your spouse to decide how you will divide your assets, including a joint bank account, while you still on friendly terms and able to reach a mutual agreement.

Another approach is to retain a family law lawyer to help you navigate California's community property laws. They can guide you on protecting a separate or joint bank account, protecting your legal rights, exercising your rights, and helping you pursue your financial goals.

You can contact our law firm for a free case evaluation by phone or using the contact form. Furman & Zavatsky are Los Angeles family law attorneys providing legal representation across Southern California.