Coates & Davenport, P.C.

Can one keep separate property from becoming marital property?

Some couples in Richmond who have significant wealth going into a marriage will execute a prenuptial agreement to protect their separate financial interests in the event of a divorce. However, some high-asset couples may have thought a prenup was unromantic or unnecessary, and did not execute one before walking down the aisle. While everyone thinks their marriage will last "until death do us part," the fact of the matter is that many marriages will end well before that. Even in the absence of a prenup, there are steps couples can take to protect their financial interests should they divorce.

When it comes to bank accounts, some couples each maintain their own separate account throughout the course of their marriage. On the other hand, some couples want to combine their finances in a joint account while married. But, if they intend to keep their separate assets separate one partner should not be added to an already existing bank account owned by the other partner. Instead, a whole new joint bank account can be opened.

In addition, if a person owns a house prior to their marriage, they should proceed with care if they wish to keep it as separate property. If they add their new spouse to the title, make mortgage payments using joint funds or work together to make improvements or do other maintenance on the home, the once separate home could commingle with the couple's marital property, which would render it the marital property of both spouses.

Finally, if a couple never executed a prenup, it is not too late to enter into a written agreement that addresses their financial interests should they divorce. This is known as a "postnuptial agreement," or post-nup. A post-nup can address many of the same issues that would be agreed upon in a prenuptial agreement. Thus, if a couple does end up divorcing, those with a post-nup may find the property division process runs smoothly.

In the end, it is possible for couples to protect their separate property from becoming marital property. This is especially important in a high-asset divorce, where there is much at stake. The information in this post is general in nature and cannot address any one person's unique situation or state law. Therefore, those who want to learn more about protecting their separate property may want to seek legal advice.

Source: Nerdwallet.com, "News you can use: You're married, but your assets don't have to be," Liz Weston, Feb. 15, 2018

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