Family Law Corner: Ex-Wife Calls Foul On Ex-Husband’s Spending

by Sarah Van Voorhis and Ariel Sosna

Kendra Rae Davis, sometime “Real Housewives of Atlanta” groupie and wife of former NBA player and current ESPN analyst Antonio Davis, is calling foul on his spending down their joint accounts since she filed for divorce last June. In addition to withdrawing $133,510 in July, Kendra claims he also spent $563,041 from a joint account on a new house. According to TMZ, Kendra is asking the court to order Antonio to return the funds because his withdrawals violated certain restraining orders.

Chances are Kendra is referring to the Automatic Restraining Orders (“ATROs”) that go into effect against the Petitioner when he/she files for divorce and against the Respondent once he/she has been served with the Petition.

Pursuant to the ATROs (California Family Code § 2040), neither party may (1) remove their minor children from the state without the written consent of the other or a court order; (2) transfer, encumber, conceal or dispose of any property, real or personal, without the written consent of the other or a court order; (3) change anything in regard to insurance policies, including beneficiaries, held for the benefit of either party or their children; and (4) modify or create a non-probate transfer (Prob. Code §5000) that affects the disposition of property (for example, changing the beneficiary on a retirement plan, revocable living trust or an annuity). There are exceptions: transfers of property are allowed if they occur in the “usual course of business or for the necessities of life.” Any proposed “extraordinary expenditures” incurred in the usual course of business or for the necessities of life require five days notice to the other party (and an accounting to the court).

Antonio responded to Kendra’s accusations by saying that the house purchase had been in the works before Kendra filed for divorce. He allegedly offered no explanation for the “smaller” withdrawal. If Antonio had been in contract to purchase a house prior the ATROs going into effect, then the payment could be characterized as “in the usual course of business.”

Nevertheless, a court would likely find that five days’ notice was required, since objectively, this was an extraordinary expenditure. Kendra’s recourse could include a contempt proceeding against Antonio, but her better option is to see an accounting of the funds (Williams v. Williams (1971) 14 Cal.App.3d 560), request reimbursement to the account (or accounts) with interest (In re Marriage of McTiernan & Dubrow (2005) 133 Cal.App.4th 1090) and for monetary sanctions for his bad behavior (Family Code §271).

About the authors:

Sarah-and-ArielSarah Van Voorhis, a Certified Family Law Specialist, and Ariel Sosna are founding partners of Van Voorhis & Sosna.