Withdrawals from Joint Account: A Problem in Separations

Discovering that a jointly held bank account has been emptied, or that substantial sums have been withdrawn without your consent shortly before a separation, is a destabilizing experience. Beyond the betrayal of trust, there is the legitimate concern for the protection of your assets and the financial future of your children. This situation, unfortunately common, is not without legal recourse. Understanding how to act is the first step towards restoring balance and ensuring that the division of assets occurs equitably. As a divorce lawyer in Milan, lawyer Marco Bianucci addresses these delicate issues with an approach focused on reconstructing transactions and protecting the economically weaker spouse.

The Regulatory Framework: Community Property and Illegitimate Withdrawals

Under the legal community property regime, which applies in the absence of a different marital agreement, savings accumulated by spouses belong to both in equal parts. Each spouse has the right to manage the common assets, but this power is not unlimited. The law stipulates that acts of extraordinary administration, such as withdrawing significant sums not intended for family needs, require the consent of both. When a spouse acts unilaterally, withdrawing funds for personal purposes or to remove them from future division, they are committing an illegitimate act. Article 192 of the Civil Code specifically provides that the spouse responsible for such acts must reconstitute the community, returning the withdrawn sum or its equivalent.

Proof of Fund Destination

The crucial point in these cases is proof. The spouse who made the withdrawal has the burden of proving that the funds were used to meet family needs or for agreed-upon investments. If they cannot provide such proof, it is presumed that the sums were misappropriated for personal purposes, and the obligation to return them is triggered. Jurisprudence consistently protects the spouse who suffers such actions, considering them an attempt to alter the correct distribution of family assets in anticipation of separation. Reconstructing bank transactions and demonstrating their purpose therefore become fundamental steps in asserting one's rights.

The Bianucci Law Firm's Approach to Asset Reconstruction

Addressing the misappropriation of funds requires a precise and timely legal strategy. The approach of lawyer Marco Bianucci, an expert in family law in Milan, is based on a meticulous analysis of the couple's financial and asset situation. The first step involves obtaining all banking documentation, such as account statements from recent years, to accurately map suspicious withdrawals, dates, and amounts. Subsequently, these transactions are contextualized, verifying whether they correspond to documented family expenses or, conversely, appear unjustified. Where necessary, the firm engages technical consultants for in-depth financial analyses, in order to build a solid body of evidence to be presented in court to obtain the restitution of common assets.

Frequently Asked Questions

My husband withdrew a large sum from our joint account before asking for a separation, can I do anything?

Absolutely yes. If the withdrawal was not intended to cover agreed-upon family expenses, the law provides that you are entitled to the return of your share, i.e., 50% of the misappropriated sum. It is possible to take action both during the separation proceedings and with a specific legal action to obtain the reconstitution of the community and a judgment ordering the return of the sums.

How can I prove that the withdrawals were not for family needs?

Proof is primarily based on the analysis of bank statements and the lack of valid justifications from the spouse who made the withdrawal. He will have to prove the legitimate destination of the funds. The absence of invoices, receipts, or other supporting documents for extraordinary family expenses, combined with the suspicious timing of the withdrawal, constitutes a strong element in your favor.

What happens if the withdrawn money has been hidden or spent?

Even if the cash has been spent or concealed, the obligation to return it does not cease. The judge can order the spouse to return the equivalent of the due sum, taking it from their personal assets (such as salary, other bank accounts, or real estate) at the time of asset division or through subsequent enforcement action.

How long do I have to take action against suspicious withdrawals?

The action for the reconstitution of the community must be exercised within one year from the date on which one became aware of the act or, at the latest, within one year from the dissolution of the community itself, which usually coincides with separation. It is therefore essential to act promptly to avoid losing your rights.

Contact Lawyer Marco Bianucci in Milan

If you are facing a situation of unjustified withdrawals in anticipation of a separation, the assistance of an experienced family law attorney is crucial to protect your interests. The Bianucci Law Firm, located in Milan at via Alberto da Giussano 26, offers targeted consultation to analyze your case, define the most effective strategy for asset reconstruction, and ensure that your rights are fully protected. Contact the firm for a professional and confidential assessment of your situation.