Will the bank accounts of the children be considered community property in a California divorce? 4 Answers as of January 24, 2011

During a divorce and separating finances, will the joint bank accounts with just me and the children be split as community property? Or will they remain untouched? Main concern that the savings I, alone created for the kids have to be split with the respondent party? Thank you.

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Warner Center Law Offices of Donald F. Conviser
Warner Center Law Offices of Donald F. Conviser | Donald F. Conviser
If the childrens' bank accounts were set upprior to separationas Uniform Gifts to Minors' Act accounts on behalf of the children, with you as Trustee, those accounts would qualify as the childrens' accounts as opposed to community property, especially if your spouse agreed to those accounts being set up and funded.However, if you set up those accounts as joint accounts in which you and the children were joint account-holders, that could be problematic for a number of reasons including, but not limited to: 1) you would have the unfettered ability to withdraw funds from the accounts for your own use, so having the childrens' names as joint account-holders could be argued by your spouse to be illusory; and 2) if you funded those accounts without your spouse's knowledge or consent,your spouse could claim that you did so in breach of your fiduciary duty to the marital community, especially if their funding was done in anticipation of separation. You should discuss the accounts with your Family Law Attorney, and you should disclose those accounts in your Declarations of Disclosure - in which you could enter a "Ch" instead of "P" or "R" as to whose accounts they are (Ch for children, P for Petitioner, R for Respondent), instead of leaving the designation blank (which would imply that they are community accounts). If at all possible, you should try to negotiate a resolution with your spouse to convert those accounts to Uniform Gifts to Minors Act accounts of the children (if they were not already set up as that type of account), with no credit or reimbursement to your wife or the community for the monies used to fund those accounts.
Answer Applies to: California
Replied: 1/24/2011
Law Office of Joseph A. Katz
Law Office of Joseph A. Katz | Joseph A. Katz
Unfortunately, the accounts are community property. You established the accounts, but apparently with your earnings which, in the absence of a prenuptial agreement, or some other consideration (established with inherited money, for example), were community property. If the money was in trust, that might be different. I am not saying that you cannot litigate this matter, but since you could withdraw and spend the money any time, the other parent has an argument that it is just another bank account for you, and could move to divide the money. You should seek a stipulation that the money be for the children, with the proviso that it remain in their accounts. You could both be signatories on the account, or appoint a neutral third party. Call an experienced Family Law Attorney for a free consultation.
Answer Applies to: California
Replied: 1/19/2011
Law Office of John C. Volz
Law Office of John C. Volz | John C. Volz
Yes the children's bank accounts are considered to be community property unless that money is in a trust to the children.
Answer Applies to: California
Replied: 1/18/2011
Michael Apicella
Michael Apicella | Apicella Law and Mediation
The answer of whether you wife is entitled to a share of those funds can vary depending on more facts that are not provided in the question. As they say, the "devil is in the details."

For instance, if the facts are that you put all the money into a joint savings account during marriage, and all the money came from your employment earnings during your marriage, (and there is no prenup that says your employment earnings during marriage are your separate property) then yes, it would likely be a community asset, entitling your wife to half.

However, your wife may not have a community interest in the funds if certain facts, such as the following, exist: (1) The money went into a special account designated specifically for the children's use, such as a college fund, and your name alone is designated on the account as trustee or custodian; (2) some or all of the money that went into the savings account came from a separate property source, such as gifts from grandparents or other friends/relatives, or were funds derived from some other separate property source.

There are other facts as well that could change the characterization of these funds. I'd suggest you consult with an experienced family law lawyer near you who has handled this type of issue before. That lawyer can give you a more complete breakdown and analysis. As you can see, depending on the facts, the outcome can be different. If you are in Marin or Sonoma County area, feel free to contact my office. Good luck!
Answer Applies to: California
Replied: 1/18/2011
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