Sometimes people think they need a prenuptial agreement to keep property they own now, separate, in case of a divorce. But everything that you own before the marriage will stay separate, as long as you keep it in your separate name. So you don’t need a prenup, if all you want to do is protect your premarital property.
Still – in a good prenup mediation, we can discuss what you each feel is fair, and you can start your marriage without unexpressed assumptions and expectations. Also, the prenup will memorialize what you have now – exactly what is your premarital assets and debt, so that there is no confusion, down the road.
Debt that you have now will be your separate debt, even after you marry
Anything you receive as a gift or inheritance, no matter when received, will be your separate property.
Where people get in trouble is when they mix up (commingle – is the legal term) separate property and marital property.
If you have good records, you can trace it, and get a separate property credit. So – for example – you inherit $250,000 from Aunt Tilly, and you use that as the downpayment on a home. 5 years later, you sell the home, and net $650,000. $250,000 is your separate property credit, and you split the balance – $400,000 – equally with your spouse. So you have $450,000, and spouse has $200,000.
If you don’t have a prenup, here are the things that will be considered (by NY State) to be joint property – owned 50/50:
- monies earned during the marriage
- gifts given to both of you (such as wedding gifts)
- retirement assets earned during the marriage
- debts accumulated during the marriage
- a business started during the marriage
- equity accumulated in a home purchased during the marriage
If you want to change any of this, you can come to mediation and I’ll help you to figure out what will work for both of you, for your future. In a prenuptial agreement, you can tailor your property rights to best meet both your needs.