Most people marry with the hope that they will have a long and happy marriage. However, because many marriages fail, it is extremely important for individuals to take steps to protect their assets in the event there is a future divorce. In Maryland, the court divides marital property through “equitable distribution.” Therefore, it is important to understand what non-marital property is and how to keep it separate from marital assets.
Marital property is any property acquired during the marriage, regardless of how it is titled, except: assets that are inherited by one person alone, gifts from third parties to one spouse alone, assets a party owned prior to the marriage or assets that are directly traceable to a non-marital asset.
To protect your assets before and during a divorce, you should do the following:
1. Before you get married, try to get your future spouse to sign a Prenuptial Agreement that clearly establishes the assets each of you owned prior to the marriage and how assets will be distributed or divided in the event there is a divorce. This is especially important if this is not your first marriage and you have property and/or children from your prior marriage you want to protect. Although it may not be a romantic topic, discussing a Prenuptial Agreement is a good way to discuss issues that may arise during the marriage and helps the couple deal with financial issues that may later cause conflict.
2. If you did not negotiate a Prenuptial Agreement, try to negotiate a Postnuptial Agreement that deals with how assets are to be treated in the event of death or divorce.
3. Keep good records and copies of statements that show what assets you had at the time of your marriage and any assets that you later acquire through inheritance or a gift from a third party. It is also very important that you do not mix or commingle such assets with marital assets. For example, if you inherit $10,000, do not put it in an account where you have funds that were accumulated or earned during the marriage. Keep such funds in a separate account and do not add any “marital” money to the non-marital money. Keep photographs of any valuables you acquire that are not marital along with the documents that show the source of the funds used to acquire the asset.
4. Keep good records tracing the use of non-marital assets to acquire other assets. If you buy an asset with non-marital assets, keep the acquired asset in your name only.
5. Again, keep all non-marital assets separate and do not commingle these assets with assets acquired during your marriage. That means keep these assets in accounts that do not contain marital money such as your salary. Be warned that if you commingle a non-marital asset with assets acquired during the marriage you lose the ability to claim that asset is non-marital.
6. If you have a non-marital asset, do not put your spouse’s name on the title to that asset.
7. If you and your spouse do use non-marital assets to acquire property during the marriage have a written agreement detailing how that asset will be dealt with in the event of a divorce.
8. If you have a retirement account at the time of your marriage, keep it separate from retirement money you acquire during the marriage. One way to do this is to keep the pre-marital money in a separate fund or move that money to an IRA account. If you cannot keep the assets separate, at a minimum, keep a copy of the statement from that account to show the balance immediately prior to the marriage and the statement immediately after the marriage to show the investment experience over the course of the marriage.
9. If you own a business with other partners, have a buy-sell agreement that establishes the method for valuing your interest or stock. This will reduce the chances of a costly fight with your spouse over how to value your interest in the business.
10. DO NOT hide assets. No matter how tempting it is, do not hide assets. The likelihood of getting caught is great and when that happens you lose all credibility with the court and the opposing party.
11. Keep good financial records during your marriage so you will know what assets exist, what was acquired during the marriage and what assets are in your spouse’s name.
12. Be involved in the financial aspects of your marriage. No matter how much you love and trust your spouse, it is important to be informed about assets, expenses, income and liabilities. This way you are not caught by surprise if suddenly your spouse tells you that he or she wants a divorce.
13. If there is a line of credit or home equity line that is accessible to your spouse, freeze it so your spouse cannot remove money from the line of credit or home equity line.
14. Reduce the credit limit on joint charge accounts to prevent your spouse from charging large amounts that you will also be liable for.
15. If there is debt in your name alone, pay it down first before you pay joint debt. Use marital money to pay off joint debt and hold on to your non-marital money.
16. Get a good accountant to help you track your non-marital assets and to help you avoid unintended tax consequences in your divorce. Always keep copies of all income tax returns that you have filed during the marriage.
17. Hire a good, ethical attorney who concentrates in family law/divorce cases. Your attorney will have the knowledge and experience to help you protect your assets.
18. Although it can be very difficult under the circumstances, find a way to keep anger and emotions out of the divorce process and focus on protecting what is yours and dividing what is marital. Try mediation or other means to resolve disputes. Some retired judges serve as mediators. The less you fight over assets and finances, the less you will incur in attorney’s fees.
PROTECTING YOUR CHILDREN
No matter what you do, your children will be affected by your divorce. The most harmful thing for children is putting them in the middle of conflict. Even if you hate the other parent, do not make the children a prize to be won in the divorce or use them as a tool to punish your spouse. Try to reach a time sharing arrangement that is in the children’s best interest. The following may help you avoid putting your children in the middle of conflict:
1. Obtain the help of a neutral child development specialist (psychologist or licensed clinical social worker) to help you come up with a time sharing arrangement that is best for your children and allows the children to have an appropriate relationship with both parents.
2. Do not use the children as a means to get assets, property or support.
3. Keep the children out of any conflict between you and the other parent. Do not say bad things about the other parent in front of the children or within their earshot, and do not let anyone else speak negatively about the other parent in front of the children.
4. If there is conflict between you and the other parent, get a parenting coordinator involved to help resolve the conflict, to help the parties better communicate about issues affecting the children and to come up with solutions that benefit the children.
5. If there are valid reasons why the other parent’s time with the children should be restricted or supervised (physical or emotional abuse of the child, drug or alcohol abuse, or other harmful behavior), document this carefully.
6. Hire a good ethical attorney who will help you come to a resolution regarding the best interests of your children.
7. If you have been the primary caretaker of the children, line up witnesses who can support your claim.
8. If there is going to be litigation involving your children, consider whether the children should have a best interest attorney appointed to represent them. A best interest attorney can give the children a voice in the litigation, which they might otherwise not have.
9. If there is litigation, ask your attorney about the benefits of having a custody evaluation.
10. Be involved in your children’s school, doctor appointments and other activities. Get to know their doctors, teachers, counselors and coaches as well as the parents of their friends. If you wind up in custody litigation, you are going to need witnesses.
11. Keep a diary of all you do for the children and document any trips away from home or absences of the other parent. Also keep a diary or journal of any important events that affect your children.
At Haspel & McLeod, we work with clients in Montgomery County, Frederick County and Howard County, Maryland, to assist them in reaching the best possible outcome in their divorce and custody cases. If you have questions about your divorce or custody case, please feel free to call our Montgomery County office at 301-424-8841 or our Frederick County office at 301-631-0592 to schedule an initial conference. Please also feel free to look at our website at www.wefight4u.com.
Disclaimer: This answer was provided by an attorney selected to Super Lawyers, and is intended to be an educated opinion only. This answer should not be relied upon as legal advice, nor construed as a form of attorney-client relationship.