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
The concept of separate property is an essential component to understand in family law, especially when navigating a prenup. The exact definition of what constitutes separate property can differ across various states, and is generally based off of state statute or caselaw. Many jurisdictions recognize assets acquired before entering into marriage as separate property. In addition, inheritances received during the marriage might also fall under this category in several states, though it’s important to note that this isn’t the case in all states. Some states will consider what is separate based off of the length of marriage, or whether the couple has children.
When an asset is “Separate Property,” the asset is tied to one individual partner and, therefore, remains protected from division of assets in a divorce. In contrast, assets labeled as “Community” or “Marital Property” are treated differently. These assets are usually acquired during the marriage and are viewed as the joint property of both spouses, and subject to division.
Caution: Asset division during a divorce isn’t always clear-cut. In certain states, courts possess the discretion to evaluate the entirety of a couple’s property, regardless of individual classifications like “Separate” or “Marital.” In such instances, the court might determine a division that it deems just and equitable, irrespective of when or how a particular asset was purchased — even if it was acquired before the marriage. This emphasizes the need for a prenup to ensure you decide what should be yours alone, and what should be subject to a potential future division!
How to Keep Separate Property Separate
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. One of the surest ways to safeguard your assets is through… you guessed it…a prenup!
Maintaining Separate Accounts
Navigating the financial aspects of a relationship is important, especially when it comes to accounts contained in a prenup. When you begin mixing your individual money with joint funds detailed as separate in your prenup, you are entering the realm of commingling. This commingling might seem harmless initially, and you may think you can even simply remove the funds at a later date with no consequences. Not so fast!
In the unfortunate event of a divorce or separation, delineating which funds belonged to whom can become a maze that even a court might struggle to untangle. If you ever end up facing a divorce or separation, having a blur of combined assets can make the process even more challenging and emotionally draining. You might find yourself grappling to identify and reclaim what you once knew was unmistakably yours.
Realistically, if you have commingled assets that were otherwise included as “Separate Property” in your prenup, they may no longer be considered separate. This happens often and easily to couples after years of marriage. They get comfortable, and move that separate investment account money into the joint investment account. No biggie, right? Wrong. Now that you moved those funds, they are likely considered commingled, and marital or community, subject to division. Don’t make this mistake.
By maintaining separate bank accounts for personal assets, not only do you retain clarity, but you also preserve individual financial autonomy. It becomes easier to manage personal expenses, track individual savings goals, and ensure that any inheritance or gifts remain distinctly separate. Furthermore, in the broader picture, keeping finances clear can lead to fewer misunderstandings and potential disputes down the line.
Organizing Separate Property
Navigating the nuances of prenuptial agreements and understanding the ins and outs of personal assets can sometimes feel like you’re diving into deep waters without a map. But let’s simplify it and break it down. Before saying “I do,” many of us have accumulated assets, both big and small, that hold financial or sentimental value. This could range from our hard-earned savings, properties, or family heirlooms, to perhaps even unique items like vintage collections or a car that’s been a personal restoration project for years.
To ensure these treasures remain clear and unambiguous, documentation is helpful. Think of this process as crafting a detailed personal inventory: methodically listing each item, then supplementing that list with tangible proofs of ownership. This could be in the form of receipts, property deeds, or inheritance letters. This detailed record not only serves as a protective measure but also fosters transparency between partners, laying a foundation of trust. These receipts can be attached to the back of your financial schedule in your prenup, along with account statements, etc. While this might seem like a lot to take in, remember that starting your marital journey with such clear understanding and mutual respect for personal assets can only bolster the foundation of trust and partnership in the years to come.
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.
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]