Life can throw some unexpected curve balls at you, catching you off guard and unprotected. A recession can drain your bank account, a surprise lawsuit can put your assets in peril, and a nasty divorce can split up more than just a family. This is why it’s so important to think about protecting your assets before any of these curve balls suddenly come your way.
Divorce is one situation that can be particularly painful—not only because of how emotionally invested you will likely be in the outcome, but also because a separation of finances can often take years to complete. You will likely be legally separated long before you are financially separated.
The first thing to consider in protecting your assets against divorce is what you can do before or during your marriage. A prenuptial agreement is an absolute must-have in this day and age, or if it’s too late for that then a postnuptial agreement can be drafted. It is worth pointing out that neither of these documents means that you are headed for a divorce; a pre- or post- nuptial agreement is, quite simply, pure common sense. In fact, many couples use the creation of a pre- or post- nuptial agreement as an opportunity to straighten out their finances, discuss some of those issues that get swept under the rug in day-to-day living, and come closer together as a family unit.
Another option to consider before or during a marriage is putting individual assets into a separate trust. This is especially effective if your family (your blood family that is—parents, brothers or sisters) have assets they wish to keep as family assets. Some examples of this might include vacation property, family heirlooms, or even “old money.” With a trust you (or your parents or siblings) can specify that assets owned by the trust can only be managed by blood relatives and descendents, thus keeping them out of the hands of spouses or ex-spouses.
If it is already too late for a marital agreement or individual trust there are still steps you can take to protect your assets, although the effectiveness of these steps will depend on your individual situation. The absolute first thing to do is to contact a lawyer! Speak honestly and openly with a divorce attorney about your situation, the attorney will know what you can do right away to protect yourself, and will direct you to an asset protection attorney if necessary.
Your second step should be to list every asset or item that you believe to be your property, or something you brought to the marriage. This includes heirlooms and gifts given to you alone, not to you and your spouse jointly. If you have already separated from your spouse you should remove these personal items from the residence as soon as possible. You may also want to contact an appraiser to determine the value of these individual assets. But remember, once a separate property gift has been comingled with marital assets it is generally then considered a joint asset.
If you and your spouse are jointly involved in any kind of business venture (or if you’ve started a business during the course of your marriage and used the revenue to support your marital household in any way) you will want to be especially vigilant about protecting that business in case of divorce. Jeffery Landers has written a series of four articles about how to divorce-proof your business which are an excellent starting point for determining the best way for you to protect your small business.
When considering how to divorce-proof your assets the most important thing to remember is this: The earlier you take action, the better. If you are even remotely considering a divorce or trial separation you need to consult with an attorney immediately. Getting advice does not equal filing papers; it simply means you are educating yourself about your options. As an asset protection attorney I can help you learn what your options are without pressure or stigma. Call me today for protection and peace of mind.