Posted by Nydia Streets of Streets Law in Florida Divorce

Can a spouse remove funds from a joint bank account once spouses separate? This is a common issue where one spouse is afraid the other spouse will empty an account and leave nothing in the account. This was an issue in the case Molina v. Molina, 4D2023-2629 (Fla. 4th DCA August 7, 2024).

The former wife in this divorce case testified that shortly after the parties separated, the parties’ joint bank account contained $30,000. When she discovered the former husband removed $2,000 from the account, she withdrew all but $1,400 from the account on the basis that the former husband stopped depositing his paychecks into the account, leaving the former wife with nothing to pay expenses. The former wife testified that she used the money to pay living and household expenses, as well as her attorney’s fees. The former husband offered no testimony or evidence in opposition to the former wife’s evidence. The trial court entered a final judgment finding the former wife committed misconduct by withdrawing the money. It further found that she should be responsible for her own attorney’s fees and costs since she paid them from the amount taken from the account. The former wife appealed.

The appellate court first held “The trial court’s misconduct finding was not supported by competent substantial evidence. It is error to include in a dissolution proceeding dissipated marital funds where one party presents unrebutted testimony on how the funds were used and there is no evidence of misconduct with respect to that use. [internal citations omitted]. Here, Former Wife presented unrebutted testimony she had spent the withdrawn money on household bills, her living expenses, and her attorney’s fees. None of these uses of marital funds was improper, and simply moving money from a joint account is an insufficient basis on which to sustain a misconduct finding. The trial court’s misconduct determination must be reversed.”

The appellate court further held that since the trial court did not state how it accounted for the former wife’s expenses, the case was remanded for “the trial court to make those findings and explain the basis for its alimony and equitable distribution calculations.” The court concluded “Finally, the trial court’s order failed to make findings on Former Wife’s need for attorney’s fees and Former Husband’s ability to pay fees, which is required even if there is a misconduct finding.”

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