What are the funds normally used for? If they are necessary for maintaining the CP business, then you need to take that into account. But if they are just savings, then you can take them before you file or are served with the Petition for divorce.
LEGALLY, there is no prohibition against doing this. Prior to filing the Petition, there are no ATROS in effect. My argument would be that taking the money is simply to preserve the CP assets until properly adjudicated by the court. There are fiduciary duties owed to the other spouse (which ARE effective prior to file a Petition) under Family Code section 721 which require each to deal with the other in the highest duty of honesty, good faith, and fair dealing. The location of the money must be DISCLOSED immediately to the other spouse. FC section 721 requires each spouse to 1) provide access to the BOOKS, 2) disclose all INFORMATION about the transaction, and 3) HOLD AS TRUSTEE any CP money in his/her control.
ETHICALLY, there is no problem with such a transfer, based upon a reasonable belief that he/she is preserving a CP asset (as opposed to the unethical goal of “bleeding him dry.”) the spouse can preserve MORE THAN HALF of the money if, for example, there are $25,000 in CP credit card debts that need to be paid off.
In conclusion, I do not see anything illegal, or unethical, about grabbing control of the “disputed” CP money. There should be enough left in the account that is “reasonably” not in dispute as being a part of the other spouse’s share. Then immediately disclose in writing the transfer, including the bank information, account number, and balance, and advise the husband that the money will be preserved until the court can adjudicate division of same. And finally, inform in writing that $10,000 of the money was paid to her attorney as a retainer toward anticipated attorney’s fees.