What happens when you have a prenup that keeps everything separate, but you want to buy property during the marriage? It’s a great question! What will happen depends on what your prenup says, exactly. Generally, there’s a provision in there for joint property purchases, even though you plan to keep everything separate, just for cases like this. What exactly that clause says varies. Let’s explore your options for this and how you can make sure your property stays separate, even if you purchase property together.
Separate Property Clauses
What is separate property in a prenup? When you mark something as separate property in your prenup, you are essentially saying “this is mine and I don’t want to split it in a divorce.” You and your partner both have the right to choose which properties you want to keep separate (think: bank accounts, real estate, personal property, inheritances, future assets, and more).
Oftentimes, couples want to keep EVERYTHING separate. That’s perfectly okay! You can definitely do that. You can also do just some stuff separate if you’re okay with sharing some of your other stuff. For example, let’s say your only objective is to keep your inheritance separate. Everything else, you’re okay with sharing (after all, you and your partner have been together for so long, you both agree it’s only fair). So, you just mark your future inheritance as separate. Anything that is not the inheritance is fair game to be split in the divorce.
Joint Property Purchases Clause
Now, if you are one of those couples who wants to keep everything separate, you may be wondering: “What happens if we want to purchase something together down the road?” Well, you can decide what happens in that case in your prenup! How? By including a clause about joint property purchases!
Here are some of your options:
- Based on contribution: If you purchase property together, you will split it up according to financial contribution to such property. For example, let’s say you buy a house together and Spouse A puts down 40% and Spouse B puts down 60%. In a divorce, Spouse B gets back 60% and Spouse A gets back 40%.
- Equal division: If you purchase property together, you will split it up 50/50 regardless of contributions. For example, if Spouse A puts down 10% and Spouse B puts down 90%, it doesn’t matter, each spouse will get 50/50 in the divorce.
But what happens if you didn’t include a clause like this? Well, if you utilized a state-compliant platform like HelloPrenup or a good prenup lawyer, they probably included a provision for jointly purchased property. But maybe you didn’t and now you’re wondering what would happen if you purchased property without this clause and you meant to keep everything separate? Well, it would typically depend on your state laws, how your state treats marital/community property, and the circumstances of your situation.
For example, in some states, the court may just automatically treat the jointly purchased property as community property and split it 50/50. Other states (equitable distribution states) may split it up according to certain factors. The circumstances of your case would also play into this.
Purchasing Property Together
If you’ve created a prenup that says everything should be kept separate, but you now want to purchase property together, make sure the first step you take is to look at your prenup! What does it say about jointly purchased property?
Make sure you understand the implications of purchasing property together before you do so. For example, if your prenup says any joint property shall be split 50/50, you may want to take that into consideration when you each put money down.
If your prenup is silent on the issue, you might consider getting an amendment to the prenup to add a clause about what happens to jointly owned property.
If you’re unsure of what your prenup says on the matter (if anything at all), it’s best to contact a licensed prenup attorney in your state.
Frequently Asked Questions (FAQs) about purchasing property together with a prenup
Q: Can we purchase property together if we have a prenup?
A: Of course! You’ll just want to brush up on exactly what your prenup says about what happens when you purchase joint property. If your prenup is silent on the matter, you’ll want to discuss with an attorney in your state because how jointly purchased property will be treated, sans prenup, may vary.
Q: What happens if a prenup doesn’t have a clause about jointly purchased property?
A: Then, you’ll want to speak with an attorney and possibly get an amendment to the prenup and/or a postnuptial agreement to add in language about what should happen. Or, your attorney can advise you on what would happen without a prenup, amendment, or postnup– it would be whatever the state laws are in your area say about the matter.
Q: How can I ensure my contribution towards a joint property is protected?
A: You can make sure to add a clause to your prenup (or amendment or postnup) that says any jointly purchased property shall be split up according to each spouse’s contributions. For example, if John puts down 10% on a house and Jennie puts down 90%, each spouse will get back their respective down payments in a divorce (Jennie getting back 90 and John getting back 10).
In a nutshell, when it comes to buying property together while keeping your finances separate, it’s vital to be proactive and consider some key steps. First off, take a close look at your prenuptial agreement. Does it have a provision for joint property purchases? If so, it’s good news! You can follow the guidelines outlined in your agreement. But what if your prenup doesn’t mention anything about joint property? No worries! That’s when you should consult with a prenup attorney and explore options like amending your prenup or getting a postnuptial agreement to cover the property purchase.
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]