If you are married, you may not be concerned at all about your mutual finances – what’s mine is yours and what’s yours is mine, and isn’t that how it should be?
On the other hand, even in happy marriages, many people are justifiably concerned about how to protect their assets in the event of a separation or divorce – you worked long and hard to build a nest egg but what will happen if your spouse decides to leave you and take a chunk of it?
Can I divorce-proof my finances before that happens?
The truth is there is not much that you can do to divorce-proof your marital finances, but you can protect your non-marital assets if you are diligent.
Your best bet is to understand what marital assets are, how they are divided in the event of a separation, and to plan ahead by entering into a prenuptial agreement before entering the marriage.
What you cannot do is transfer assets or attempt to hide them when a separation or divorce is imminent…
How Can I Divorce-Proof My Finances?
If you are concerned about how to divorce-proof your finances, the first step is to understand what marital property is and how the family court divides assets. Keep in mind that some non-marital assets can be converted to marital assets through the process of transmutation, and consider entering a prenuptial agreement before you tie the knot.
Division of Assets
During divorce proceedings, the family court will divide your marital assets and marital debts – cash, bank accounts, investment accounts, real estate, and even business assets can be considered marital property by the court.
The split may be even, or it could end up weighted heavily to one side or the other depending on the many factors that the court considers when dividing assets, whether your spouse is asking the court for transmutation of your non-marital assets, and whether you negotiated a separation agreement before your final divorce hearing.
You can Protect Your Non-Marital Assets
You may not be able to divorce-proof your finances by protecting marital assets from equitable division, but you can take steps to preserve your non-marital assets including property that you owned before the marriage, property you received through an inheritance, and property that was a gift to you individually.
If you expect to receive an inheritance and you are concerned about divorce-proofing your finances, ensure that the inheritance names you individually and not you and your spouse jointly. Once you receive the inheritance, ensure that the funds or property is maintained in a separate bank account or is titled in your name only.
If you expect to receive a gift from any source, ensure that it is gifted to you individually. Again, ensure that the funds or property are maintained separately. Also, ensure that the nature of the gift and its intended recipient (you) are documented in writing.
Transmutation of Non-Marital Assets
Be clear in all communications and documents that you intend for your non-marital property to remain non-marital property.
If you commingle the funds, jointly title the property, or use the property exclusively for marital purposes, your spouse may be able to ask the family court to convert the property to marital property through transmutation. Take care to keep your non-marital property separate from marital property and joint accounts.
A separate support and maintenance agreement can give you and your spouse some peace of mind. Once the agreement is finalized, it will take away some of the uncertainty and speculation as to how the court will divide your property and whether your non-marital assets are secure.
If you proceed to a final divorce hearing without having negotiated a separation agreement, there are no guarantees as to how the court will divide your property or how the court will settle other issues like alimony, child support, and visitation.
A well-drafted prenuptial agreement, if there is full disclosure of all assets and both spouses are represented by counsel, may be the most effective method of divorce-proofing your finances.
Even if you and your spouse entered into a prenuptial agreement, you will still need to take care by not commingling non-marital assets, by guarding against the possibility of transmutation of assets, and by entering into a separation agreement if you and your spouse should become separated.
You should not attempt to divorce-proof your finances by transferring your assets into someone else’s name when it appears that a separation and divorce are imminent.
SC Code Section 27-23-10 makes it clear that any transfer of property or funds done for “for any intent or purpose to delay, hinder, or defraud creditors and others of their just and lawful actions, suits, debts, accounts, damages, penalties, and forfeitures” is void and can be undone. This includes transfers made to avoid equitable division, alimony, or child support payments.
Section 27-23-10 lists specific factors that will create a “rebuttable presumption” that a transfer was fraudulent and intended to avoid child support payments:
(B) A showing of two or more of the following creates a rebuttable presumption that a child support debtor intended to transfer income or property to avoid payment to a child support creditor:
(1) a close relationship between the transferor and transferee;
(2) the debtor retained possession or control of the property transferred after the transfer;
(3) the transfer or obligation was not disclosed or was concealed;
(4) before the transfer was made or obligation was incurred, the debtor had been sued or threatened with suit;
(5) the transfer was substantially all of the debtor’s assets;
(6) the debtor absconded;
(7) the debtor removed or concealed assets;
(8) the value of the consideration received by the debtor was not reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred;
(9) the debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred;
(10) the transfer occurred shortly before or after a substantial debt was incurred; and
(11) there was a departure from the usual method of business.
Although there are ways to plan ahead and divorce-proof your finances, last-minute transfers of wealth or property will likely be placed under a microscope and may hurt your case instead of helping it.
Your Myrtle Beach divorce lawyer on the Axelrod team can help you to structure your wealth or assets in a way that may divorce-proof your non-marital finances.
We can help you to negotiate and draft a prenuptial agreement before your marriage, a separation agreement if you are separating from your spouse, or we can fight to protect your nonmarital property and fight for a favorable division of marital assets in your divorce proceedings.