Protecting your assets is the heart of any good prenup. It’s really simple to make sure your assets are protected, but a word to the wise: we highly recommend you use HelloPrenup’s state-compliant platform, an attorney, or a combination of both to make a prenup. Trying to do this yourself is nightmare fuel for any family law attorney or HelloPrenup employee. With that said, we wrote this article to help you start conceptualizing the ways you can protect your assets in your prenup. But DO NOT TRY THIS AT HOME, KIDS! (Unless you’re using HelloPrenup, of course!)
How does a prenup work?
A prenup is a contract between two fiances planning to walk down the aisle. Prenups are effective upon marriage (if you never actually get married, you don’t have a prenup). Prenups generally handle financial issues in the case of divorce, such as property division, debt allocation, and alimony (i.e., spousal support).
Many people hope to never have to invoke their prenup for a divorce. However, sometimes life happens, and your marriage comes to an end. If you do file for divorce, your prenup helps you in many ways. You basically have already pre-determined the hard-hitting issues, like property division, debt allocation, and alimony in your prenup, so now you don’t have to spend time arguing over them in divorce court. That not only saves you time but also money in attorney and court fees. The cherry on top? Valid prenups protect assets (if you want them to). If you’re reading this article, we are guessing you want to protect your assets, so keep reading to learn just exactly how to do that.
What is an asset?
Let’s take one step back and make sure you understand exactly what assets are: basically anything with economic value. We sometimes use the term asset and property interchangeably, as they pretty much mean the same thing in this context. For example, a piece of real estate is both an asset and your property. Still with us? Okay, good. Here are some other examples of assets you may see in a prenup:
- Real estate
- Bank accounts
- Investment funds
- Retirement accounts
- Credit card reward points
- And more.
Separate property vs. marital/community property
The key to protecting assets lies within the separate property and marital/community property distinction. Let’s do a quick refresher.
Separate property in a prenup is the property that you deem yours and yours only. If you say something is separate property in your prenup, then you are saying it is not subject to division in a divorce.
Marital property or community property (depending on what state you live in) is the property that you deem joint between you and your spouse. If you say something is marital/community property, you are effectively saying it is subject to division in divorce. How it will be split up will depend on your state’s divorce laws and your specific situation. If you’re in a community property state, it will probably be split 50/50. If you’re in an equitable distribution state, it could be split 50/50, 40/60, 30/70, or any other combo.
To sum it up? Separate property = protected in a divorce. Marital/community property = not protected in a divorce.
As you probably guessed by now, when you are creating your prenup, you’re going to want to outline what property is considered separate and what is not. Do you want to protect those assets? Better mark them as separate property!
Inheritances and gifts
Inheritances and gifts are assets you will have in the future. An inheritance is money or other assets that are passed down to you by a family or friend after they die. A gift is money or some other asset given to you while the person is still alive. You might get substantial wedding gifts, Christmas gifts, or birthday gifts from your family and want to protect them.
Inheritances and gifts can be protected in a prenup by outlining them as separate property. If you don’t, they may be considered marital/community property and be split up in a divorce. Inheritances are often mistakenly believed to be automatically protected in a divorce, and that’s just flat-out wrong. Inheritances can be divided up in a divorce.
Whether you have a pre-existing business (a business you started before getting married) or plan on starting a business after the wedding, you can protect both by making sure any separate property invested into that business stays separate. This may include any increase or appreciation of the business during the marriage, regardless of whether your spouse contributed to the business. Along with any earned income you receive from the business.
While earned income may not technically be considered an asset, it may still be worth protecting in your prenup. Earned income is a lot of things, but most commonly is your salary, commission, and bonuses. Earned income can also be royalties, rental income, residuals, deferred compensation plans, and more. Do you want the income you earn during marriage to be shareable in a divorce? If not, then make sure to outline earned income as separate property, along with the rest of your assets you want to protect.
Don’t forget about that investment income. What are some examples of investment income? It could be income from bonds, stocks, investment funds, other securities, real estate, retirement investment accounts, annuities, interests in trusts, and more. Are you cool with sharing these things in a divorce? No? Then put it as your separate property!
Separate assets in exchange for other assets
Let’s use an example to conceptualize this. You have a house that is your separate property. You sell the house, and with the proceeds from that house, you purchase a new house. Is this new house still separate property? If the answer is yes, then you’re going to want to make sure separate assets exchanged for other assets are marked as your separate property in your prenup.
Appreciation on separate property
Picture this: you purchased an isolated lake house a few hours outside of Chicago long before you ever met your boo. You get married in 2019. The pandemic hits, and lake house-type properties skyrocket to the moon! Your isolated lake house, previously worth $250,000, is now being valued at $1,000,000 in 2020! The appreciation in the value of this lake house is $750,000. Is the $750,000 separate property, or are you okay with potentially sharing it in a divorce? You know what to do… if you want to protect it, mark it as separate!
Property listed on your financial schedule
A financial schedule is essentially a snapshot of all of your finances that you attach at the end of your prenup. This process is known as financial disclosure. Financial disclosure is important because it informs your future spouse about your financial situation. Do you have debt? What kind of assets do you have? If you’re a secret billionaire, they may be hesitant to waive their rights to any of your “stuff.” There is no room for skimping here; if you withhold any information on your financial schedule, you run the risk of invalidating your prenup.
So, what do you put on your financial schedule? You put whatever property you own and any liabilities you are responsible for. This may include any debts/liabilities, accounts, real estate, vehicles, businesses, retirement funds, artwork, potential inheritances/gifts, and any other assets. This is the stuff you own prior to the marriage (think about it: if you’re filling out a financial schedule for your prenup, you’re not married yet). You can make sure all of these “things” are protected by marking them as separate property.
The Bottom Line
Protecting your assets is a smart move. It’s no secret that 40-50% of married couples get a divorce. It’s basically a coin flip on losing a portion of your assets. With a prenup, protecting assets is as easy as pie. It boils down to separate property versus marital/community property. What is deemed separate property will remain your property, not subject to division in a divorce. What is deemed marital/community property is subject to division in a divorce. The assets you protect are up to you. Things you can protect include real estate, bank accounts, retirement funds, artwork, jewelry, vehicles, and much, much more.
HelloPrenup can help you protect your assets. With our interactive platform, you can create a prenup that is tailored to your needs. Do you want to protect all of your assets minus the inheritances? You got it. Maybe you want to protect all of your assets minus the businesses. We got you. Our platform walks you and your partner through a detailed questionnaire, financial disclosure, and negotiation phase. The result? A legally sound prenup you can trust. Click here to learn more about how it works.
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]