It is estimated that over 60% of divorces are filed by women. Yet asset protection attorneys will tell you that men are the ones who will protect their assets at the first sign of marital discord (if not before), while women will leave themselves financially vulnerable. If divorce is on the horizon (or even if it isn’t, but you want to protect yourself), before you mention the “d” word, consider a few simple strategies to ensure your financial security.
It is always best to prepare for the financial ramifications of marriage BEFORE you say “I do”. However, it’s never too late to educate and protect yourself. Marriage often merges two differing levels of income, assets, and liabilities. To prevent unnecessary financial vulnerability, any woman with substantial net worth should engage in asset protection planning and not take comfort solely in a prenuptial (or postnuptial) agreement. Such agreements are notoriously unreliable, and no matter how competently prepared, often litigated. As a start, you should have a separate bank account with sufficient cash to live off for at least three to six months and longer if you intend to be a homemaker. State laws vary as to how pre-marital assets are treated in a divorce. It’s a good investment to pay an attorney for the answers to these questions before you walk down the aisle, or, if you are already married, after reading this article.
Many spouses remove value from the pool of marital assets by accumulating wealth in a business owned before marriage that operates outside of the purview of the other spouse. All too often women have been left with less than their fair share while the ex walks away with a profitable business, deemed to be a premarital asset. If your spouse operates or invests in a business, learn about it and ask your attorney (not the family attorney who advises your spouse) about your rights with respect to that business.
Remember: Before you ever mention divorce to your spouse or anyone who knows him, consult with an asset protection attorney and follow his/her advice. It is most important to have yourself financially prepared before filing for the divorce. Once divorce papers have been filed, options are limited. To set up an offshore trust you’ll need to have at least half-a-million in assets, or be expecting a similar size inheritance that you wish to safeguard. Properly structured offshore asset protection can protect assets from being awarded to your spouse by a judge. Such actions will give you charge of the bargaining chips. You may choose to divide your assets fairly with your spouse, but what is fair will be decided by you and not a judge or the to-be-ex. Once you have a protective structure, use it. After setting up an offshore trust, ask relatives (your parents, grandparents) who might name you in a will to name your offshore trust as the beneficiary instead.
Living within your means will help you survive a divorce financially as well as emotionally. Before you begin the process get a handle on your income and expenses, assets and liabilities, and estimated costs of legal fees. Take into account that many expenses change for a single person or single parent. Get estimates on housing, utilities, and property, car and medical insurance. Know how separation and divorce will affect your state and federal income tax liability. If this is a daunting task, speak with a financial planner about managing your assets and budget.
Real property purchased prior to a marriage may be considered a pre-marital asset. However, in certain states, like Florida, real estate that is a married couple’s homestead/primary residence automatically becomes a marital asset no matter how or when it was purchased and despite how it may be titled. At the very least you should seek legal advice to understand what real property will and won’t fall into the marital asset pool.
Most states let you leave a marriage with the assets that you came into the marriage with, if those premarital assets have remained clearly segregated. If you put your spouse’s name on bank accounts, property, or inheritances during the marriage, such action will probably be deemed a gift and the property will no longer be just yours, but will be marital property to be divided by the court – or pursuant to a pre- or post-nuptial.
In many marriages, one spouse often deposits the checks, pays the bills, and makes investment decisions. If that person is not you, be sure to actively participate in and understand the family’s finances (don’t wait until you want out of the marriage). Maintain your own copies of all asset records and liabilities. Before signing any legal document (contract, mortgage, personal guaranty, tax return, shareholder or operating agreement) understand the effect of such document. Keep in a place that you can easily access copies of your and your spouse’s current will, trust, and other estate planning documents (life insurance policies, IRAs, 401Ks, etc.). Don’t hesitate to have an attorney review and explain them so that you know their ramifications if your marriage continues, ends, or if your spouse has an untimely death.
In a divorce, state law determines the rights of a spouse to the other spouse’s retirement accounts. Keep copies of retirement account statements. Speak with your investment advisor to ensure that your retirement is adequately supported. It is possible that divorce may mean a delay in your retirement plans or significantly alter your lifestyle.
Before proposing a divorce, interview with several divorce attorneys. Read online reviews, and ask friends and family for referrals. Many therapists offer divorce counseling. This is an excellent way to keep legal fees low (if you and your spouse can work out your conflicts without the input of two lawyers and a judge). When divorces spiral out of control, the only winners are the lawyers. Keep it civil, and know what the cost of each argument will be. There is only one pie to split, and the bigger the piece that the lawyers get, the smaller the piece that you take home. That being said, don’t be afraid to fight for your rights and rely on your lawyer’s judgment. Ethical lawyers will tell you what’s worth fighting for, and what should be conceded.
Update your estate plan. Should anything happen to you, during or after the divorce, you probably wouldn’t want your ex being the executor of your estate, the trustee of any trusts, or the beneficiary of any will, trust, retirement account, or life insurance policy. Speak to your attorney.
With proper forethought the financials of divorce can be kept in order and in your favor. Information is power and power is in planning before you act.
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