How can I protect my assets before getting married without prenup?
Short answer: One option (not a very good one, frankly, but about the best there is under the circumstances as you describe them in your question) is: 1) own no major/valuable property before you are married (in other words, your spouse would probably not seek (and the court would probably not award to your spouse any part of) things like your clothes and personal effects, so you could live in a house and drive a car you lease and thus have no such “big ticket” items that could be sold and the proceeds of sale awarded to your spouse in divorce; 2) save nothing in the bank or in investments and retirement accounts, so that there is nothing like in which your spouse could try to claim an interest; and 3) ensure that you do not earn more than your spouse does, so that your spouse cannot make an easy argument for alimony.
Your real question may be this instead: How can I prevent losing too much (being treated unfairly) financially in divorce? If that is your question, it is a very good and very common one.
After all, most reasonable people would agree that what a couple acquires together during marriage is considered “their” property, “our” property, instead of “there’s yours and there’s mine”.
- A couple marries and buys a house together in which they live for years. Sure, it may have been that one spouse worked full time while the other stayed home to take care of the kids and the house, but they’re a team, partners (in both a legal sense and a practical sense).
- Saving up for retirement. It’s common for one spouse to be better able to pursue a career and advance in it (thus making more money for retirement) when the other spouse stays home with the children (at least while they are quite young) and keeps house. Both spouses understand that one hand washes the other.
The decision to purchase the house and the decision to have one spouse be the primary breadwinner and the other the children’s primary caretaker was made together, for mutual benefit. The spouse with the full-time job knew in advance that he/she would be sharing the house and retirement funds with his/her spouse and worked for the money needed to fund these things. It’s understood that these things are marital property that would be divided equally in the event of divorce. It makes sense.
But there are other issues that aren’t so clear cut. Many people—mostly husbands, but a growing number of wives—have this sense that:
- “divorce should not result in my being financially exploited”;
- “divorce should not result in being robbed of what was mine before marriage and what I acquired for myself during marriage”;
- “I shouldn’t have to continue to support a spouse financially if I’ve done nothing to make divorce necessary; if my spouse wants out of the marriage and files for divorce, then he/she should do so with the understanding and expectation that with the end of the marriage comes the end of any and all of my obligations to support my spouse due to the fact that he/she is no longer my spouse”;
- spouses who:
- don’t carry their fair share of the weight during the marriage, who don’t do their best to contribute, and/or become financially dependent upon the other spouse as a result of being lazy (as opposed to spouses who are or become, due to disabilities beyond their control, financially dependent on the other spouse); and/or
- abuse the other spouse and/or children, commit adultery, or waste marital resources (e.,, refuse to uphold their marital responsibilities with impunity)
are moochers in divorce when they demand that the people to whom they are no longer married nevertheless keep supporting them financially. There is something inherently unfair in that concept.
In response to these questions and concerns the best answers for me personally are:
- If I am truly worried that my marriage could end in divorce to a gold digger, the solution does not lie in trying to figure out a way to protect my assets but in not marrying the suspected gold digger.
- I did not marry to keep tabs on how much I have to lose in divorce. Yes, there are risks in trusting my spouse with my welfare (both physical and emotional), but the opportunity to enjoy a happy marriage is worth the risk to the right person. Now please understand: I get that sometimes you can do everything right and marry someone who was great but who later changed and turned on you. That’s sad, but not enough of a reason to avoid marriage, in my opinion. Well-rounded married people are generally much happier than well-rounded single people. Don’t deny yourself the joys and blessings of marriage out of the fear of divorce. There is no meaning to success without the risk of and the fight against failure.
- There is no more reliable and cost-effective way to protect your assets in divorce than with a well-drafted prenuptial agreement. Warning: even the most well-drafted prenuptial agreements are not iron-clad, but they are better than nothing (far better) if you are concerned about protecting yourself from being raped and pillaged financially in divorce.
Utah Family Law, LC | divorceutah.com | 801-466-9277