In Illinois, if your spouse empties a joint bank account before or during a divorce, you can’t rely on automatic protections but you can file a motion for temporary relief or to maintain the financial status quo. Courts can order the funds restored or award you temporary support. Act quickly and consult an attorney to restore financial security to your household.
Can A Spouse Legally Empty A Joint Bank Account Before Or During An Illinois Divorce?
Before a divorce is filed, there is no mechanism to prevent anyone from emptying a bank account. The parties are only limited by the rules the bank set for the account.
Unfortunately, after a divorce is filed there is no automatic mechanism in Illinois to prevent a spouse from emptying a bank account before or during an Illinois divorce.
It may seem ridiculous that one spouse can go nuclear and deprive the other spouse of any money to spend, live on or even eat. Other states have something called an “automatic stay” that prevents bad behavior like emptying/closing bank accounts and failing to pay bills as a divorcing party had in the past. Illinois, however, does not automatically freeze divorcing parties’ financial lives so that both spouses can maintain their standard of living until further order of court. Illinois used to have this commonsense legislation but an Illinois Supreme Court case found the law to be unconstitutional. Messenger v. Edgar, 623 N.E.2d 310 (Ill. 1993)
Because Illinois law allows for bad behavior, the victim of financial abuse such as emptying a bank account must act retroactively when the abuse happens in order to preserve their rights.
Advising Your Spouse To Not Empty The Joint Bank Accounts In An Illinois Divorce
At the beginning of a divorce, a strongly worded letter should go out to your spouse advising them that any failure to pay a current bill, closure of an account, or unnecessary withdrawals from any existing account will have serious penalties.
The spouse should be warned that any financial shenanigans will be met with an emergency motion to maintain the status quo, a petition for attorney’s fees to pay the emergency motion and a dissipation of assets claim.
Both spouses and/or their attorneys should convene to discuss what the “new normal” should be for the parties finances as the divorce proceeds.
Undoing The Emptying Of A Joint Bank Account In An Illinois Divorce
If a spouse does not need the warning letter or is able to empty the bank accounts in advance of receiving such a letter, a motion should be filed immediately.
There are two types of motions that can be filed to restore financial sanity to your household during an Illinois divorce: A motion for temporary relief and a petition to maintain the status quo.
750 ILCS 5/501 is the portion of the Illinois Marriage and Dissolution of Marriage Act that allows for extremely broad relief during the pendency of a divorce.
A court can order that joint accounts be restored or even order that the spouse that absconded with the joint funds, sell their assets or borrow to restore those funds to marital use.
““Either party may petition or move for…other appropriate temporary relief including, in the discretion of the court, ordering the purchase or sale of assets and requiring that a party or parties borrow funds in the appropriate circumstances.” 750 ILCS 5/501(a)(3)
In my experience, the party who empties a joint account is usually the financially dominant party. A motion for temporary relief should also include a request for temporary support as future funds are likely to be withheld as well.
“Either party may petition or move for
- Temporary maintenance or temporary support, accompanied by an affidavit , accompanied by an affidavit as to the factual basis for the relief requested.” 750 ILCS 501(a)(1)
Alternative to asking for support after a spouse empties a bank account, either spouse can ask that the court restore the bank account and the responsibility for paying current bills via a Petition To Maintain The Status Quo.
A Petition To Maintain The Status Quo is a request for an injunction.
An injunction is “[a] court order commanding or preventing an action” Black’s Law Dictionary (11th ed. 2019)
“[A] preliminary injunction is granted prior to trial on the merits for the purpose of preventing a threatened wrong and to preserve the status quo with the least injury to the parties concerned.” In re Marriage of Jawad, 326 Ill. App. 3d 141, 154 (Ill. App. Ct. 2001)
While an injunction can certainly forbid the future emptying of bank accounts, it can also look backwards and order that the bank accounts be restored in order to preserve the status quo as it recently was with joint accounts at their previous balances fully accessible by both parties.
“Usually, the status quo is maintained by keeping everything at rest and in its present condition. However, sometimes the status quo is not a condition of rest but of action because the condition of rest will inflict irreparable injury on the party seeking injunctive relief.” Ron & Mark Ward, LLC v. Bank of Herrin, 2024 IL App (5th) 230274
If the money is gone and spent, that’s the spouse that took the money’s problem. Failure to restore the emptied bank account to the ordered balance will result in a finding of contempt and possible jail time.
Can You File An Emergency Motion To Restore Joint Bank Accounts During An Illinois Divorce?
Motions get filed, then the motion gets a presentment date, then the opposing side is given time to respond to the motion, then the motion gets set for hearing. That means a motion for temporary relief or a petition to maintain the status quo might not receive an order for months. Meanwhile, with the joint account emptied, you have no access to funds which are necessary for you to live.
Each county in Illinois has its own definition of what qualifies as an emergency motion.
In Cook County, “[a]n emergency is defined as a sudden and unforeseen circumstance that may cause injury, loss of life, or damage to property and that requires urgent response and remedial action.” Cook County Domestic Relations Administrative Order 2021 AO 3(2)
It is important to frame how the lack of access to funds will cause an injury (failure to pay for medical care) or damage to property (failure to pay gas or electricity will cause damage to the marital home).
Try not to frame the emergency motion as a request for “support” because that type of emergency relief will likely be denied.
“Absent the risk of imminent harm or severe prejudice, the following matters will generally not be heard as an emergency:
- Motions to establish or modify custody, set child support, paternity, or visitation, unless risk of imminent harm to child” Cook County Domestic Relations Administrative Order 2021 AO 3(2)
If the emergency motion is denied, the motion will still be heard…just at a later date.
“If it is determined that the matter presented is not a valid emergency, the movant will be directed to place the matter on the Court’s regular motion call and to notify all parties that the motion will not be heard as an emergency.” Cook County Domestic Relations Administrative Order 2021 AO 3(4)(c)
There is a little-known but powerful legal workaround for financial emergencies: filing for an Order of Protection based on financial abuse. Orders of protection by their very nature have an emergency basis and the statute almost insists that orders of protection be granted (at least on a temporary basis).
“If the court finds that petitioner has been abused by a family or household member…an order of protection prohibiting the abuse, neglect, or exploitation shall issue” 750 ILCS 60/214 (emphasis mine)
“’Abuse’ means physical abuse, harassment, intimidation of a dependent, interference with personal liberty or willful deprivation” 750 ILCS 60/103(1)
Emptying a joint bank account is likely to trigger a ‘willful deprivation’.
“’Willful deprivation’ means willfully denying a person who because of age, health or disability requires medication, medical care, shelter, accessible shelter or services, food, therapeutic device, or other physical assistance, and thereby exposing that person to the risk of physical, mental or emotional harm”750 ILCS 60/103(15)
A finding of willful deprivation means that joint bank accounts will not just be replenished but support is also likely to issue on an emergency basis.
After a finding of abuse under the Illinois Domestic Violence Act a court may “[o]rder respondent to pay petitioner for losses suffered as a direct result of the abuse, neglect, or exploitation. Such losses shall include, but not be limited to, medical expenses, lost earnings or other support, repair or replacement of property damaged or taken, reasonable attorney’s fees, court costs and moving or other travel expenses, including additional reasonable expenses for temporary shelter and restaurant meals.(i) Losses affecting family needs. If a party is entitled to seek maintenance, child support or property distribution from the other party under the Illinois Marriage and Dissolution of Marriage Act, as now or hereafter amended, the court may order respondent to reimburse petitioner’s actual losses, to the extent that such reimbursement would be “appropriate temporary relief”, as authorized by subsection (a)(3) of Section 501 of that Act.” 750 ILCS 60/214(13)
The Domestic Violence Act encourages Illinois courts to tailor specific remedies (like re-establishing joint bank accounts) for specific wrongs (like emptying joint bank accounts). Illinois courts can grant relief so varied and broad such as “prohibiting abuse, neglect or exploitation; granting exclusive possession of a residence and/or personal property; forbidding damaging property ordering the respondent to stay away from the petitioner; requiring counseling, payment of support, or payment for shelter services; prohibiting owning a firearm; and granting injunctive relief to protect family members. Thus, the trial court has the ability to tailor an order of protection to address individual circumstances and needs, improve victim safety and hold the perpetrator accountable for his or her actions.” Sanchez v. Torres, 48 NE 3d 271 – Ill: Appellate Court, 1st Dist., 2nd Div. 2016
The Real Solution To A Spouse Emptying Joint Bank Accounts In An Illinois Divorce
If there is a divorce on the horizon, you should start applying for credit cards in your name and calling your current credit cards (which, hopefully, are also only in your name) and asking the credit card companies to raise your limit.
Any debt incurred before the divorce is finalized will be deemed marital debt and, thus, will be divided in the final divorce judgment.
“”[M]arital property” means all property, including debts and other obligations, acquired by either spouse subsequent to the marriage” 750 ILCS 503(a)(emphasis mine)
The filing of a divorce does not draw a “line in the sand” for division of assets and debts. In Illinois, you’re not divorced financially until you’re divorced.
“To hold that the parties did not accrue marital property [or debt] after the date of physical separation would be to recognize “common law divorce,” and the law and public policy do not support such a result.” In re Marriage of Morris, 640 NE 2d 344 – Ill: Appellate Court, 2nd Dist. 1994
That being said, you can’t go hog wild with credit cards because courts are allowed to consider who created the debt and when. Illinois divorce courts can weigh whether “the contribution is after the commencement of a proceeding for dissolution of marriage or declaration of invalidity of marriage” 750 ILCS 5/503(d)(1)(iii)
Alternatively, you can open your own individual bank account and start depositing your paycheck in that account. That is likely to alert your spouse who you are afraid will empty the existing joint checking accounts and thus trigger the event that you were afraid of (emptying the joint checking account).
Division of assets is inevitable so you may simply withdraw your half of the joint account and deposit that money in your individual account. Of course, this may trigger your spouse to file a motion for temporary relief or to maintain the status quo as described above. If your spouse has emptied a joint bank account or even has threatened to drain a joint bank account, you need to be ready for an acrimonious and contested divorce. Contact my Chicago, Illinois family law firm to schedule a free consultation with an experienced Illinois divorce attorney.
