Divorce is stressful enough without financial shocks. One of the most upsetting calls we get is when a spouse empties the joint account right before (or right after) filing. Understandably, that triggers panic: How do I pay bills? Is the money gone for good?
Can a spouse legally empty a joint account?
If you’re both listed owners, a bank generally won’t stop either of you from withdrawing funds. That’s a banking rule—not the end of the story. In a New Hampshire divorce, the judge divides the marital estate equitably (often 50/50 unless there’s a reason to do otherwise). If If the judge deems it necessary, money one spouse pulled out can be counted back into the marital pot, and the other spouse can be made whole in the final division.
Important NH wrinkle: the “automatic restraining order”
Once a divorce is filed and the parties are notified, New Hampshire’s Family Division issues an automatic restraining order. This is a different type of restraining from a domestic violence no-contact order. This is a type of restraining order that restrains how the divorcing spouses handle their finances. This automatic order is also called the “anti-hypothecation” order. This order generally bars either spouse from moving or hiding assets except for ordinary living expenses—until the case is over or the court allows it. Violations can lead to court sanctions. If you need access to funds, you (or your lawyer) can ask the court for permission.
Beyond the standard order, courts can issue temporary orders or other temporary relief (even ex parte in emergencies) to protect money and keep bills paid while the case is pending
What can the court do if your spouse cleaned out the account?
Reimburse/offset: Award you a larger share of other assets to make up what was taken. Justia
Count it back: Treat the withdrawn funds as still part of the marital estate if they existed pre-filing. Justia
Penalize misuse (“dissipation”): If money was blown on improper purposes (e.g., hiding assets, gambling), the court can weigh that against the withdrawing spouse and adjust the split. Judges have broad discretion under RSA 458:16-a.
What to do right now
Call a lawyer quickly. Fast action preserves options.
Save records. Download statements showing balances before/after the withdrawal.
Ask for temporary orders. You can request access to funds, bill-pay arrangements, or financial restraints while the case proceeds. Justia
Protect your credit. Make sure minimums on joint debts are covered; consider moving direct deposits to your own account.
Don’t self-help. Retaliating by draining other accounts can backfire under the automatic restraining order
Even though your spouse may have been able to withdraw the money, that doesn’t mean they get to keep it all. The court has tools to ensure the final division of property is fair. If you find yourself in this situation, the best step is to speak with an experienced divorce attorney as soon as possible to protect your financial future.
At Cohen & Winters, we regularly help clients in New Hampshire navigate complex divorce issues like this. If your spouse has taken funds or you’re worried about protecting your assets, we’re here to guide you through your options.