How to Protect Your Assets During Divorce

In divorce cases, it is difficult to protect assets. Property acquired during the marriage, regardless of title, is generally subject to equitable distribution in divorce cases. However, spouses are not powerless in protecting their marital and non-marital assets.

First, spouses can sign a pre-nuptial agreement (also known as a prenuptial contract or premarital agreement) prior to marriage. Through a pre-nuptial agreement, a spouse by contract can opt out of the default divorce laws, including those regarding the classification of marital property, spousal support, and/or alimony. A pre-nuptial agreement can also waive an elective share, which is a state-mandated award of property to the surviving spouse from the decedent spouse’s estate. These agreements are especially important for high net worth individuals or those entering a second marriage.

Second, if an asset was acquired through a non-marital source such as a gift, inheritance, or exchange of non-marital property, a spouse seeking to protect those assets should keep them separate from jointly titled assets and other marital assets. This is because commingling an otherwise non-marital asset with marital assets will cause the non-marital asset to be reclassified as marital and thereby subject to division during divorce proceedings.

Third is to document the origin and source of the assets. Parties in divorce cases are often required to document their financial accounts, real estate holdings, business interests, and debts. Poor documentation can lead a Court to draw adverse inferences, and the burden of proving that an asset is non-marital typically falls on the party who holds the asset. Proper documentation is critical in family law litigation, especially in complex divorce and asset division cases.

At MacElree Harvey, we have helped countless spouses and spouses-to-be protect their assets before, during, and after divorce. If you have questions about how we can help you with asset protection, estate planning, or family law matters, please contact us.

Contact Patrick J. Boyer
Family Law Attorney | MacElree Harvey
Direct: 302‑504‑7294