Unquestionably, a fair, legally binding pre-marriage agreement is your
safest way to secure your assets. A pre-marriage agreement is a written
contract between intended spouses which specifies how their marital property
and income shall be divided should they divorce.
Absent a pre-marriage agreement, divorce courts divide property either
as equitable distributions or as community property. Courts in equitable
distribution states have the discretion to divide whatever property is
owned by both spouses. The courts consider the length of the marriage,
the age, health, conduct, occupations, skills, and employment and earnings
potential of the respective spouses, and other requisite factors included
in their state divorce statutes.
Equitable division doesn’t necessarily mean
equal division. They equitably distribute property acquired during the marriage
or marital property. Non-marital property includes gifts or inheritances
to one spouse during marriage or property acquired before marriage. However,
non-marital property isn’t necessarily safe from division. Equitable
distribution states can divide pre- or post-marital assets.
Community property states divide community property equally. Separate property
is property acquired by each spouse before marriage. Community property
includes property acquired and used jointly or individually during the
marriage. Separate property includes property one spouse owned before
the marriage and retains sole title to after marriage, as well as property
a spouse receives as a gift or inheritance before or during the marriage.
Separate property is not divided in divorce. If you exchange separate property
for another asset, the new property continues as separate property, as
does the sale proceeds. If you commingle separate property with joint
property, the separate property becomes divisible joint property.
Spousal obligations incurred before marriage also remain separate obligations.
The parties may agree to separately pay marital debts but this does not
bind creditors who can nevertheless sue either spouse.
To protect property in a community property state, each spouse should list
their separate property upon marriage. The spouses would formally agree
that these assets are to remain separate property thereafter. Gifts or
inheritances received during a marriage should also be kept separate to
keep these assets free from a spousal claim.
Contact The Presser Law Firm, P.A. for a complimentary preliminary consultation
with one of our experienced attorneys today.
The Presser Law Firm, P.A.
6199 N. Federal Highway, Boca Raton FL 33487
(561) 953-1050 or e-mail Info@AssetProtectionAttorneys.com