If you’re getting remarried, the best way to protect your separate property and make sure it STAYS separate is through a prenuptial agreement, point, blank, period. A prenuptial agreement provides the highest level of protection available (legally) to your stuff. Without it, sure, you still may be able to salvage your separate property in a divorce, but it’s not guaranteed. And is that really worth the risk? If you’re a daredevil and willing to take on that chance, there MIGHT be some things you can do to attempt to keep your separate property separate, but again, you’re gambling at that point. Keep reading to find out what you can do to *TRY* to keep your separate property separate in a divorce.
Understanding Separate Property
What is considered separate property can vary from state to state, but many states will consider separate property to be the assets you have before you get married, and sometimes the assets you inherit (but not always). If something is categorized as “Separate Property” then it is not subject to division in a divorce. If something is categorized as “Community or Marital Property,” then it IS subject to division in a divorce.
BE WARNED: In some states, a court may simply look at ALL of the property as a whole and make a discretionary decision on how the property should be divided. Regardless of whether or not you purchased it before the marriage.
How to Keep Separate Property Separate Without a Prenup
Disclaimer
Without a prenup, there’s no ironclad way that you can keep your separate property (i.e., property owned before the marriage) separate. We do not recommend trying to do this without a prenup, as there are exceptions and nuances to the law that can apply and change the categorization of your property from separate to joint. The best way to safeguard your assets is through a prenup.
Maintaining Separate Accounts
One surefire way to make your separate property turn into joint property is to put all your money into the same account. This is called commingling–when you mix separate property funds with other funds. When you mix funds, a court may not be able to trace out what was actually YOUR separate property in a divorce. Thus, your once-separate-property is now joint property and subject to division in a divorce. That is why it’s best to maintain separate bank accounts if you want to attempt to keep separate property separate.
Documenting Separate Property
Documentation plays a crucial role in establishing and preserving the separate nature of your property. Keep records of any assets you owned prior to marriage, including purchase receipts, property titles, and/or inheritance documents. This documentation could one day act as evidence in the event of a dispute, helping establish the origin and ownership of your separate property.
Avoiding Commingling of Assets
Like we said earlier, keep separate things separate, don’t mix them. Commingling is the mixing of funds to an extent that it can’t be untangled and has to be divided up. To prevent the unintentional commingling of assets, it is important to maintain a clear separation between your separate property and any community property. This not only includes avoiding joint accounts and adding your separate funds to joint accounts, but also title. Making sure if you want to keep something separate, it stays in one person’s name.
Avoid Contributions to Separate Property
In many states, if one spouse contributes to your separate property, whether it be monetarily or in sweat equity (say helping to physically remodel your home), then they will be entitled to some portion of it. This depends on your state laws and your specific circumstances, but it is possible to lose some of your separate property due to spousal contributions.
Clear Communication and Transparency
While this isn’t necessarily a legal way of doing things, it can be a personal way to set expectations with your spouse, and potentially reduce the likelihood of future conflict. Make sure to communicate to them exactly what you want to keep separate. For example, let’s say you own a home prior to marriage that you expect to keep your separate property. Your partner on the other hand believes you would want to share that in a divorce, since she helped you pick out all of the designs for it. Well, this could one day end in a big misunderstanding…in the courtroom. It’s better to set the expectation ahead of time. Now, the BEST way to set the expectation is through a prenup and to put it all in writing.
Inheritance and Estate Planning
If you have children from a previous relationship or wish to ensure that your separate property is passed down to specific individuals, estate planning becomes crucial here. If you don’t have an estate plan in place, then the intestate laws of your state will determine who gets what when you die. This is different in every state, but the spouse usually gets a big chunk of your money.
If you want to keep separate property separate, even in death, you should consider consulting an estate planning attorney to create a will, an elective share waiver, establish trusts, or explore other legal instruments that align with your intentions and protect your separate property.
Keep in mind that prenups can be a great tool in making sure separate property stays separate in death, and that is through the spouse waiving their rights to any of your separate property in the prenup itself.
Child Support and Alimony
Don’t forget about child support and alimony. While this article mainly focused on the actual assets you own and the division of such, it’s also important to think about child support and alimony in a divorce because it can dig into your assets.
Alimony and child support are determined by a court and there’s no way to avoid that. There’s no secret trick you can utilize to avoid paying alimony or child support.
However, with a prenup, you can waive alimony (but not child support). This is really the only way to attempt to keep alimony out of the equation in the event of a divorce.
Frequently Asked Questions (FAQs) about keeping separate property separate
Q: Can I protect my separate property without a prenup?
A: You can try, but it’s not as ironclad as getting a valid and enforceable prenup would be. If you want to have the highest level of protection for your separate property, get a prenup.
Q: What if my spouse contributes to my separate property during the marriage?
A: If your spouse contributes to your separate property, they may be entitled to a portion of it in a divorce. This depends on your specific circumstances and the state law applied.
Q: What happens if I remarry without taking any steps to protect my separate property?
A: Without any measures in place to protect your separate property, it may be subject to division during divorce or in death.
Q: Are prenuptial agreements the only way to safeguard separate property?
A: Prenups are the highest level of protection you can give to yourself if you want to keep your separate property separate.
Conclusion
The bottom line is we do NOT recommend getting remarried without a prenup. Theoretically, you could skip the prenup and still keep your separate property intact, but why risk it? When a prenup is only $599, and you stand to lose up to half OR MORE of your separate assets, is it worth the risk?
Nicole Sheehey is the Head of Legal Content at HelloPrenup, and an Illinois licensed attorney. She has a wealth of knowledge and experience when it comes to prenuptial agreements. Nicole has Juris Doctor from John Marshall Law School. She has a deep understanding of the legal and financial implications of prenuptial agreements, and enjoys writing and collaborating with other attorneys on the nuances of the law. Nicole is passionate about helping couples locate the information they need when it comes to prenuptial agreements. You can reach Nicole here: [email protected]
to give you the best experience.
0 Comments