Whether you’re a real estate mogul or just dipping your toes into the homeowner pond, you may want to consider getting a prenup to protect your real estate assets. With a well-structured prenup, you can ensure that your assets remain in your possession, even in the event of a divorce. How exactly to go about that? Well, keep reading to find out!
Understanding Prenuptial Agreements
Before delving into the advantages of a well-structured prenuptial agreement, let’s first understand what it entails. A prenuptial agreement, commonly known as a prenup, is a legal contract entered into by a couple before they get married. It outlines the distribution of assets, debts, and other financial matters in the event of a divorce. It’s not only a financial document, but also an emotional one by facilitating communication about difficult topics such as divorce, finances, children, death, etc. This communication, in turn, leads to alignment as a couple and expectation setting for the marriage.
Benefits of a Well-Structured Prenuptial Agreement for Your Real Estate Assets
Protecting Pre-Marital Real Estate Assets
If you own real estate properties or investments prior to your marriage, a well-structured prenuptial agreement can help protect them from being split up in a divorce. By marking any real estate assets owned prior to marriage as “Separate Property” you can make sure your spouse does not have a right to any portion of those assets.
Protecting FUTURE Real Estate Assets Purchased During Marriage
If you plan on purchasing real estate during your marriage, not to worry. You can protect those, too! As long as you make sure that real estate assets accumulated during marriage are kept as “Separate Property” (and your prenup is valid and enforceable) you can ensure that those future assets that you don’t own yet are safe and sound.
Clarity in Property Division and Financial Matters
By including provisions regarding your real estate assets (existing and future) in your prenup, you establish predetermined rules for property division, financial obligations, and other pertinent matters. This clarity helps avoid lengthy legal battles and ensures a smoother resolution. Not to mention it lays down expectations for one another during the marriage and ensures both parties are on the same page.
Minimizing Conflicts and Legal Disputes
Divorce can really take a toll on anyone, both emotionally and financially, especially when there are valuable real estate assets at stake. But guess what? There’s a way to make this challenging process a little easier. By creating a well-structured prenuptial agreement, we can actually minimize conflicts by addressing any potential disagreements from the start. This not only leads to a more amicable and efficient divorce process, but it also gives us peace of mind knowing that our real estate assets are protected.
Safeguarding Business Interests
If you’re a real estate business owner or have significant investments in the real estate world, I’ve got some good news for you. A prenuptial agreement can actually shield both your businesses and investments from being impacted by a divorce settlement. This means you can hold onto control and keep growing your business or investments without any interference. It’s like putting a protective shield around your hard-earned assets.
Peace of Mind
As the real estate mogul you are, a prenup can provide the peace of mind necessary to know your assets are safe and sound in any situation. Investing tons of sweat equity and money into your assets can be stressful, but with a valid and enforceable prenup, you can divorce-proof your real estate assets.
Elements of a Valid and Enforceable Prenuptial Agreement
In order to actually protect your real estate assets, you need to actually have a valid and enforceable prenup. If your prenup is not valid and enforceable, then you can’t protect your assets. It’s important to understand that what is a valid and enforceable prenup in one state, may not be the same in another state. However, there are some common themes of validity and enforceability across many states. Below are some of these elements:
- Financial Disclosure of Assets. Debts, and Future Inheritances: Virtually all states require some level of financial disclosure. This means both parties should provide complete and accurate information about their assets (including real estate assets), debts, and financial obligations. Transparency is key to avoid future disputes. If you leave anything out of your financial disclosure, you risk your prenup getting thrown out if your partner ever challenges it down the road.
- Voluntariness of Both Parties: Each party should enter into the agreement willingly, without any type of “force” present, such as duress, undue pressure, or coercion. For example, if the person feels coerced into signing the agreement for whatever reason, they can argue that the prenup is unenforceable and a court must decide on the issue.
- NO Unconscionable Provisions: The provisions within the prenuptial agreement should NOT be unconscionable (i.e., they must be fair and reasonable to both parties). A prenup should not heavily favor one person and should align with applicable laws. If not, the prenup can be challenged and potentially thrown out by a court.
- Notarization and Witnesses: Some states (not all) require notarization and witnesses for prenups to be considered valid. Without these two elements, your prenup can be thrown out if ever challenged in court.
Creating a Well-Structured Prenuptial Agreement to Protect Your Real Estate Assets
Okay, you’re going to get a prenup. Where do you start? Creating a well-structured prenuptial agreement focused on protecting your real estate assets generally involves some of the following steps (remember, each state law is different and what is required in one state may not be required in another):
- Step 1: Have a discussion about getting a prenup and what you want in it. Engage in open and honest conversations with your partner about the importance of protecting your real estate assets. Make sure you are clear about your intentions and what goals you have for the prenup. Allow your partner to express their goals, concerns, and wishes, as well.
- Step 2: Seek out a way to get a prenup (lawyer or HelloPrenup). Consult with a knowledgeable family law attorney or utilize HelloPrenup’s state-compliant prenup platform to guide you through the legal requirements and help create an agreement tailored to safeguarding your real estate assets.
- Step 3: Identify and document real estate assets. Compile a comprehensive list of all your real estate assets, including properties, land, business interests, and investments. Gather and organize all relevant documentation to support their valuation. You will need to include the value of each in the financial disclosure section of your prenup.
- Step 4: Determine how exactly you want to structure your prenup in terms of splitting up assets (or keeping them separate). Discuss and negotiate with your partner to determine the terms of property division, financial obligations, spousal support, and any other matters. Find a mutually beneficial arrangement that supports both spouse’s goals.
- Step 5: Draft and review the agreement. Collaborate with your respective attorneys (or just simply hit “Generate” in HelloPrenup’s app) to draft the prenuptial agreement. It is crucial that both parties have the opportunity to review and fully understand the terms before signing.
- Step 6: Make sure you complete the proper execution steps as required by your state. Follow the legal requirements for executing the prenup, such as signing, notarizing, including witnesses, etc. Be mindful of any specific waiting periods or unique formalities in your state.
When it comes to divorce, we all know it can have a major impact on our finances, especially when real estate assets are involved. The good news? There’s a way to proactively safeguard your valuable properties. By creating a well-structured prenuptial agreement, you can divorce-proof your real estate assets and establish clear guidelines for how they should be divided. Think of it like building a sturdy fortress around your financial future, ensuring that your hard-earned properties are protected.
Cary Jacobson is the founder and CEO of Jacobson Family Law. Cary has been practicing law for over a decade, having successfully represented clients in all facets of family law proceedings. Jacobson Family Law focuses on assisting clients in creating out-of-court solutions to their separation, divorce, custody, and other family law matters without the drama and stress associated with litigation. Additionally, Jacobson Family Law assists clients with protecting their assets through the negotiation of pre/post-nuptial agreements and estate planning.