Divorce is often a messy, complicated and emotionally charged affair. Hasty or poor decisions made regarding the division of money and property may haunt you after the dust has settled. There are actions you can take to protect your money during divorce, even if you are just considering a divorce. The following tips are also wise to take into consideration if you are about to get married, especially if one person is entering the union with a great deal more wealth than the other.
Keep in mind that there are Community Property States and Equitable Distribution States. A Community Property State requires that the “marital assets” be split in half equally; California is a Community Property State.
1. Consider the After Tax Value of Funds and Assets.
- For example, should your ex offer you a $50,000 IRA in exchange for $50,000 in a bank account, he or she would have access to all of the funds immediately. Should you need access to the funds you would have to pay the taxes and penalties for cashing out the IRA early and could be left with only half of the money
2. Resist the Temptation to Wage War Against Your Adversarial Spouse.
- The extra 10% they may be asking for could end up costing you less than the lawyer’s fees in an all out legal battle. It’s best to avoid confrontation and keep the peace.
- You can choose to have an attorney and have an amicable dissolution, it does not have to cost you everything you are fighting to keep.
3. Funds you Have Had in Accounts Before the Marriage Remain Yours Unless you Have Commingled the Money in a Joint Account.
- In California, the presumption is that what you owned before marriage is yours unless there is evidence to rebut that presumption.
- Also, if you owned property before marriage that property is most likely still yours unless you did something to rebut the presumption.
4. Heirlooms Given Solely to you by your Family also Remain your Property.
- Make sure you have proof that the items were indeed endowed only to you and not your spouse as well.
- Wedding gifts can be characterized as community property.
5. It’s a Good Idea to Hire a Professional Appraiser to Determine the Value of your Assets.
- An appraiser can arbitrate the value of your spouse’s business as well.
- It is also a good idea to get an appraisal of any real property to avoid disputes as to valuation.
6. Community Property is Assessed at Market Value.
- For example, the $250 pots and pans set you both own might only be worth $75 used.
7. You or your Spouse are Allowed to Return to the Residence and Claim Belongings if Either of you have Moved out.
- If you hired a locksmith to change the locks, your spouse can legally hire another locksmith to change them again and gain access to the residence unless there is a restraining order in place.
- You cannot make unilateral decisions on the division of property, they have to be joint decisions or decided by a court.
8. Spousal Support can be for Life
- In a state such as California, if you have been married for more than 10 years the spouse earning the least amount of money has the right to receive alimony for as long as he or she needs.
9. It’s a Bad Idea to try and Hide your Funds and Assets.
- There is a legal process in all states called “discovery”. Your spouse has the right to obtain information regarding all of your accounts and places where you may have stashed assets. You will likely have to provide live testimony that you have been truthful about your finances.
- You could be charged with perjury and fined if you are caught lying and lose 100% of that asset if you did try to lie. It’s best to hire a good divorce attorney who will help you get the best settlement possible.
10. Prenuptial Agreements can Potentially be Contested or Require Costly Legal Action to Uphold.
- A prenuptial agreement does not guarantee a fight at divorce but it can be helpful to identify what is separate property before walking into the marriage.
- Some people have found that a Domestic Asset Protection Trust (DAPT) can protect their funds in the event of a divorce. A DAPT is an irrevocable trust that prevents creditors from accessing your money and in some cases, can prevent your spouse from accessing it as well. You should investigate the viability of a DAPT because the rules are different from state to state.
Divorce can be a financially devastating process, but there are ways to minimize the risk and the financial loss to your assets and property. Minella Law Group can assist you to protect your money during a divorce. For more information or to schedule a consultation, click the button below, or call us at 619-289-7948. We look forward to helping you.