What is financial disclosure in a prenup?
When it comes to a prenuptial agreement, both fiancés must disclose all of their assets. This is done in the form of a “financial schedule,” which is a snapshot of all of your income, assets, debt, and future inheritance. This disclosure is attached to the end of your agreement.
One of the things we repeat often at HelloPrenup, is that financial disclosure is important. Got a cool million $ sitting in a brokerage account and don’t feel like you need to account for this in a prenup? Don’t want to tell your fiancé about that $25,000 in credit card debt that is rapidly accruing interest each month? Think again.
Let’s take a quick look at what your financial schedule consists of:
HelloPrenup’s form allows you to detail and disclose three years of income. If you want to be extra thorough, you may consider exchanging tax returns for the past three (or more!) years as well.
You should include the addresses and values of all real estate, including any residences or investment property. You will need to collect the most up to date information on any mortgages, assessed values and fair market values.
Be sure to collect all up to date information on your checking and savings accounts.
Investments & Retirement
Collect all up to date balances and information on any investment or retirement accounts. Each of these accounts will need to be detailed individually.
Your financial schedule should include any business interests you hold, including the type of business, your equity in those businesses, and the value of those interests.
Don’t forget about that watch collection! Your asset section should include individual descriptions and values for all assets of value. This includes vehicles, boats, jewelry, artwork, etc.
Want to exclude inheritance (or potential future inheritance) from the marital estate? Make sure to state as much in your prenup, and also include those interests and estimated values on your financial schedule.
The importance of financial disclosure can be boiled down to one simple point: How can you contract away rights in a prenup, if you don’t know exactly what you are contracting away?
Is full financial disclosure (or “full and fair” financial disclosure, as it is defined in some states) the letter of the law in all states?
Nope. Most states require some level of disclosure, some states require full disclosure, and some states allow parties to a prenuptial agreement to waive disclosure.
One thing is for sure- When a prenup is being enforced, a judge will look at whether the parties were apprised of all the assets. This is universal.
In states where financial disclosure can be waived, the judge may look at the totality of the circumstances- did the fiancé waiving rights to certain assets have the knowledge that those assets existed? If it’s a business, did they have reason to know what the business was worth?
Judges will view these issues differently.
In Massachusetts for example, if you fail to disclose an asset your prenup may not be enforced. Why? Because Massachusetts requires full and fair disclosure. Period, end of story. You cannot choose to omit assets from your financial schedule, and doing so will leave you in an incredibly vulnerable position down the road. In addition, if the judge decides your entire prenup should be thrown out, the assets that had been intended to be protected in your prenup may now be up for debate. You and your spouse may need to engage in expensive and lengthy litigation to determine matters that would have otherwise been covered in your prenup. Like we said, it’s a whole world of mess you want to avoid.
What we do know is that you should include *all* of your financial information in your financial schedule if you want to be transparent, fair, and you want a good chance of enforcement.
HelloPrenup offers categories to help you organize this information.
Some states require “full disclosure” of finances, and others require “full and fair financial disclosure” of finances. Other states allow parties to waive their rights to disclosure of assets. Now, this gets dicey, because if you choose not to disclose all assets, there could be a very clear argument that the prenup should not be upheld since the waiver was not done correctly, or the other party did not have reason to know of the assets, etc. The list goes on.
The bottom line? If you want the greatest chance of enforcement, it is important that you disclose ALL of your assets and finances.
What Documentation Do I Need to Exchange?
The exchange of documents to back up your financial schedule is always a good idea, but this exchange is not strictly required. There is no doubt that complete disclosure of all assets, income and debts on your financial schedule is essential. In addition to that disclosure, it is a good idea to exchange statements or appraisals associated with the disclosures on each of your financial schedules. Doing so can help show that each party understands and agrees that the values on their financial statements are accurate and not in dispute. It is up to you and your fiancé as to whether you would like to attach these statements to the back of your respective financial schedules, but doing so can add an extra layer of validation, and if your prenup is in dispute in the future, having those statements attached can help.
Here are some examples of what documentation you could exchange:
- Personal tax returns for the years included on your financial schedule
- Most recent pay stub
A copy of the most recent statements related to your debts and liabilities (including but not limited to):
- Most recent mortgage statement(s)
- Most recent car loan statement(s)
- Most recent credit card statement(s)
- Most recent medical debt bill(s)
- Most recent tax debt bill(s)
Assets & Accounts:
A copy of the most recent statements related to your assets and accounts (including but not limited to):
- A copy of each party’s recent credit report
- A copy of all most recent bank account statement(s)
- A copy of all most recent investment account statement(s)
- Most recent retirement plan statement(s)
- Business-related documentation, including an estimated value
- Business tax return(s)
- Titles and deeds to all real property
- Copies of insurance policies
- Most recent appraisals and tax bills for real estate
- Copies of all vehicle titles and registrations
- Kelly Blue Book value of each vehicle
- Appraisals of valuable personal property, such as jewelry, antiques, and collectibles.
Waiver of Further Disclosure
Regardless of whether or not you choose to exchange back-up documentation, your HelloPrenup agreement will also contain a “Waiver of Further Disclosure” page. This page will contain signatures from both of you, and states that you are each satisfied with the backup documentation (or lack thereof).
Let’s look at some caselaw.
Let’s take a look at case law from a few different states for a few examples:
In re Marriage of Howell (2011) 195 Cal.App.4th 1062, 1064, 126 Cal.Rptr.3d 539, 541.
Former wife argued that prenuptial agreement was invalid because it was “unconscionable.” In order to invalidate a prenuptial agreement, lack of full and fair financial disclosure is not enough, the agreement must also be unconscionable. See Fam. Code, § 1615. The court determined that the agreement was not unconscionable. In doing so, it noted that the parties made disclosures of property within the premarital agreement and further, the level of disclosure of assets and liabilities “was fair, reasonable and full”. These disclosures included the husband’s non-marital properties, retirement account, and separate liabilities. In addition, the court considered that there was no great financial disparity between the parties and the fact that former wife was a bookkeeper and was therefore capable of understanding former husband’s financial disclosures. “Fair, reasonable, and full disclosure” may also be attained through “adequate knowledge of the property or financial obligations of the other party” or express and voluntary waiver of financial disclosure. See Fam. Code, § 1615. So, this tells us that when challenging the validity of a prenuptial agreement in California, financial disclosure is tied with unconscionability.
Rostanzo v. Rostanzo, 73 Mass. App. Ct. 588 (2009)
Former husband included a financial disclosure in couple’s prenuptial agreement in which he disclosed that he had $1.3 million in real estate holdings but failed to include a $400,000 mortgage obligation on one of the properties. Wife challenged the validity of the agreement based on insufficient disclosure. To determine whether a party’s obligation of fair disclosure was satisfied, the focus of a court’s inquiry is whether “the disclosure [was] such that a decision by the opposing party may reasonably be made as to whether the agreement should go forward.” Id. at 110, quoting DeMatteo v. DeMatteo, 436 Mass. 18 (2002).
The court ultimately concluded that the financial disclosure was sufficient and the agreement was therefore valid. In doing so, the court considered the fact that at the time the parties entered into the agreement, wife was aware that husband’s property in Florida was encumbered by a mortgage. Additionally, both spouses were represented by attorneys and neither wife nor her attorney requested any information from husband regarding his liabilities during negotiations. The court also noted that wife was not prejudiced by the failure to include the mortgage in the disclosure as the reduction in net worth would not have materially affected wife’s decision to enter into the agreement. So, this case tells us that in Massachusetts, financial disclosures do not have to be exact. Rather, general approximations of the ones’ net worth may be sufficient. Additionally, even whether there are significant gaps in the financial disclosures, the court will analyze whether those gaps “prejudice” the complaining party (i.e. whether the information would have potentially altered the decision to enter into the agreement).
Marsh v. Marsh, 949 S.W.2d 734 (Tex. App. Houston 14th Dist. 1997)
Wife was reluctant to remarry after incurring financial loss due to the decline in health and eventual death of her late husband. However, second husband agreed to provide for her financially if she were to marry him. In the prenuptial agreement, second husband agreed to transfer half of his assets to wife 30 days after their wedding. However, second husband never carried out this promise and wife sought enforcement of the agreement. Second husband challenged the validity of the agreement arguing that wife did not provide a disclosure of her financial obligations prior to entering in to the agreement. The court ultimately concluded that the agreement was valid. In examining the validity, the court started with an analysis as to whether or not the agreement was unconscionable because, “lack of disclosure is material only if the premarital agreement is unconscionable.” In concluding that that agreement was not unconscionable, the court did not even need to analyze the disclosure issue. So, this tells us that in Texas, financial disclosures are only considered by the court when an agreement is “unconscionable”.
Waton v. Waton, 887 So. 2d 419 (Fla. 4th DCA 2004)
Former husband and wife entered into a prenuptial agreement in which both parties waived their right to alimony. The former husband attached a list of his assets to the agreement with included approximate valuations. Additionally, many of the valuations were listed as unknown. Upon separation 18 years later, former wife challenged the validity of the prenuptial agreement based on husband’s financial disclosure.
The court ultimately decided that the former husband’s financial disclosure was sufficient. Even though some items in the list of assets attached to the agreement were listed as having unknown values, the court determined that the former husband was not attempting to conceal his assets from former wife and that the asset list gave former wife “such general and approximate knowledge of his property as to enable [the spouse] to reach an intelligent decision to enter into the agreement.” Id., quoting Del Vecchio v. Del Vecchio, 143 So. 2d 17, 21 (Fla. 1962). So, this shows us that while financial disclosures in Florida need to be full, fair, and open, they do not need to be minutely detailed or exact. What the courts are really looking for in determining whether the disclosure is insufficient, is whether there has been an attempt to conceal assets from the other party.
Protecting Your Prenup: How to Avoid Commingling Assets
While your prenup is hugely important for protecting you and your spouse’s financial wishes, it is not iron-clad. Actions taken by you or your spouse can undo some of the work done by your prenup. But fear not! We’ve got you covered for all the do’s and don’ts to keep your prenup working hard for you.
What does “commingling assets” mean? And why should you care?
Commingling assets is the act of combining separate or non-marital property or assets with marital property. Once separate and marital property is commingled, it is often transformed into marital property. When this occurs, it’s difficult to undo. Commingling becomes an issue when the court is dividing your assets upon divorce.
Here are a few common examples of commingling assets:
Let’s say your spouse owned a home before marriage. In most states, the home would be considered separate property. However, if you contribute marital money to make improvements, then the once separate property could now be considered marital.
If you receive money from a deceased loved one, it is generally considered separate property. However, there are caveats, of course. If you deposit that inheritance into a marital account or use it for marital purchases such as a family car or home, it may be considered marital property by the court.
Many spouses come into a marriage with an existing retirement account. Those would generally be considered separate property. However, after marriage, if marital funds are deposited into the account, the account may be considered marital – or at least the portion of the account after marriage.
How to prevent commingling of assets
Your prenup is, of course, a big help! Your prenup can specify which property you wish to remain separate. However, even with your prenup in place, if you consistently contribute marital funds to a separate account, it muddies the water when it comes to determining if the account is truly marital or separate.
Even if the court determines that the property in question is separate in line with your prenup, commingling can present doubt as to the non-marital nature of an asset which may result in costly litigation.
Here are a few tips to prevent the commingling of assets:
- Keep separate accounts for marital and non-marital funds
- Keep any inheritance in a separate/non-marital account
- Never use marital funds for the purchase of non-marital property
- Use a marital account for “marital expenses”
- Never use marital funds to pay off any portion of non-marital debt
- Keep sufficient records supporting the categorization of your assets or property
Even when you can separate commingled assets/property, be aware that the process can be time-consuming and expensive. Forensic accountants may be necessary in order to truly separate and trace funds to establish the separate or marital nature of an asset. The better practice is, of course, to avoid commingling from the get-go.