13 Apr Protecting assets before a marriage

Q. I’m getting married and we’ve both had other marriages. I think we should keep our accounts separate but I think she wants to merge what we have. How can I make sure to protect what I have — I have more than she does — just in case? And how can we have this talk without it being a fight?
— Groom

A. This is certainly an issue you need to discuss before you tie the knot.

When entering into a marriage, the easiest way to protect any assets you may have or otherwise be clear about what should happen in the event of a divorce is to enter into a prenuptial agreement, said Ken White, a certified matrimonial attorney with Shane and White in Edison.

He said an experienced family law attorney can draft such an agreement with as much or as little specificity as you desire or need.

“In addition to addressing what happens to your premarital funds, you can address what happens in the event you buy a home, whether alimony is off the table, the preservation of any independent retirement benefits you may amass as well as any other detail you can think of,” White said.

Without a pre-nup, assets owned by one individual prior to a marriage and maintained separate throughout the marriage will not be subject to equitable distribution in the event of a divorce, White said. The exception to this general rule would be if such assets are commingled during the marriage.

White offered this example: If you have a brokerage account with a $50,000 balance on the day you get married and throughout your marriage you leave that account isolated — not contributing additional funds into that account and not placing the funds in joint names — and you were to divorce, that $50,000 account, plus or minus any fluctuations due to market conditions, would remain you independent property. However, if during the marriage you moved that $50,000 into a joint account or utilized the funds to purchase a joint asset such as a new home, any immunity you enjoyed would be lost as the funds would be considered commingled.

So if you want to make sure you protect what you already have, a pre-nup is the smartest way to go. If you fear this will be a problem for your soon-to-be spouse, you can try keeping assets separate — but then you’re taking a chance. If that that’s not something she wants, expect it to become an issue in your marriage as the years go on.

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This post was first published in April 2016.