Are Premarital Assets Protected in Divorce?

Do you get to keep the assets you brought into the marriage in the event of a divorce? Yes. And no. This can be a very tricky part of divorce proceedings. If you get divorced, you are entitled to keep your separate assets. This generally includes property and other items that you owned before you were married. However, this rule comes with many asterisks.

There are certain circumstances in which items that were separate assets before the marriage can morph into marital assets over time. In other words, if you brought a big savings account or a sports car into the marriage, don’t assume you get to keep it until you’ve spoken to an attorney.

According to divorce lawyer B. Robert Farzad, the event of a divorce makes people worry about pre-marital property. You may have already owned your home or other property when you came into the marriage, and you certainly don’t want to lose it on your way out of it.

Keeping Your Separate Assets Separate

There are many ways to protect your separate assets, but be wary: many of these can put stress on your relationship. Even if you are just trying to be practical, there can be an implied level of distrust and/or no faith in the marriage. Here are a few of your options:

  • A prenuptial agreement – This is a common way to keep assets separate as you and your spouse-to-be sign documentation stating that certain properties will remain separate in case of divorce.
  • A postnuptial agreement – This is a less-common option that is often used in situations where you and/or your spouse buy a business during your marriage.
  • Avoid transmutation – Your separate account can be considered to be a shared account if you use money from it for a shared asset, such as the marital home.
  • Avoid commingling separate and marital property – Your separate account can become shared property if you deposit earnings from your spouse into it.

The Cost of Doing Business

Protecting your assets when going into a marriage can be very important in many situations, but it can come at a cost. If your future spouse does feel that by trying to protect your things you are showing a lack of faith in them and in your marriage, you can end up with no marriage to worry about as your relationship comes to a premature end.

Should you choose to protect your assets, be careful about how you broach the subject with your partner. Be sure to emphasize that these are purely practical considerations and that they aren’t indicative of a feeling of distrust, and don’t try to force the issue too much.

Is It Worth the Trouble?

Deciding how to protect your separate assets in case of divorce can be very tricky. For one thing, it is often not something that people think very much about when going into a marriage. Most people don’t enter into a marriage with practical thoughts of the strong statistical possibility of divorce. Most enter simply with love and a notion that their bond is strong enough to stand up to any statistics.

Most people also consider their things to be shared at that point, as they imagine they will be with their spouse forever. Later down the line, when divorce comes up or when the idea of divorce seems like a strong possibility is when most people start to worry about keeping the things they had coming into the marriage.

If you really want to make sure you retain your properties, you can’t wait until this point though. If you didn’t actively do something to protect your separate assets, they have likely become shared property in one way or another.

If you care about protecting your assets, you must think practically when entering into your marriage, rather than waiting until you are leaving it. Consider whether your assets are worth protecting at the possible expense of putting a strain on your relationship.

If you do choose to protect your assets, no matter what method you use, make sure to discuss it with your spouse. If you try to avoid transmutation of assets within marriage without discussion, it is likely to get messy.