In a divorce, what are a wife’s rights to money that is held separately in her husband’s account?

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In a divorce, what are a wife’s rights to money that is held separately in her husband’s account?

If a couple are married and currently have joint checking and savings accounts with an on-line bank that is out of state and the husband just opened a new checking and savings accounts in his name only with a payable on death beneficiary to his wife then if they get divorced can his wife get any of the money he has in the new accounts? He works for an organization and they did direct deposit into the joint account but now into his single account and he receives a 1099 from this organization for taxes.

Asked on November 23, 2011 under Family Law, North Carolina

Answers:

S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

If you live in a community property state such as CA, community property is property acquired during marriage which includes income during marriage.  Each spouse has a one half interest in community property.

Separate property is property acquired before marriage or after the marriage ends.  This includes income before marriage or after the marriage ends.  A spouse has no claim to the other spouse's separate property.

If your husband is depositing income earned during marriage into the separate bank account, that income is community property and you would have a one half interest in it.  If the income is from a separate property source such as income prior to marriage or income after the marriage ends, the income is your husband's separate property and you would not have any claim to his separate property. 

When it is unclear whether an item is community or separate property, you look to the source to determine its character.  In other words, if the source is community property, then the character of the funds in your husband's account is community property.  If the source is separate property, then the character of the funds in the account is separate property.


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