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You didn’t do a prenup: Can you still carve out some protections?

On Behalf of | May 7, 2015 | Firm News, High Asset Divorce

OK, so you forewent that prenuptial agreement, thinking that insisting upon negotiating and signing off on the dotted line with your soon-to-be spouse might make for just a bit too much drama prior to the wedding. Perhaps you bought into the notion that prenups are akin to ice water on a fire. Maybe you thought that whipping out a marital contract would somehow jinx the romantic ardor marking your relationship and the future staying power of your marriage.

Whatever the reason, here you sit now, happily married yet still wondering if there is anything you might do to safeguard certain assets that you view are yours and yours alone.

In other words, your separate property is speaking to you, and you want to take purposeful action to ensure that it doesn’t somehow become designated as marital property down the road and maybe even play into a divorce proceeding.

Because marital assets are divisible in a divorce, in every state in the country. In Arkansas, a family court judge will divide those assets pursuant to the state’s equitable distribution scheme.

So, what can you do to increase the odds that property you never addressed in a premarital contract can still be protected during marriage?

For starters, you can read up on “commingling” and seek promptly to avoid engaging in it. Succinctly put, that means to avoid mixing marital monies with any accounts you brought into the marriage as separate property. Keep separate accounts, well, separate. Failure to do so will likely result in an asset split in a divorce proceeding.

Keep good records concerning your various account balances as of the date of your marriage. A judge might require an account splitting in a divorce, but knowing the cost basis of your accounts from day 1 might reduce the outlay that is granted to your divorcing spouse.

And, if you have a business, properly valuate it before you marry. Although your enterprise might have prospered since your marriage, the net worth of the business on your wedding day could conceivably stay with you as separate property, with only the excess being divisible in a property settlement.

And remember, many couples still execute postnuptial agreements following marriage that can address many of the matters customarily attended to in prenuptial contracts.


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