Divorce can be draining – emotionally and financially. Use these tips to protect your assets upon divorce. Steps can be taken prior to or during the marriage, as well as after marital breakdown.
1) Marriage Contract:
The best way to protect your assets is by way of a prenuptial agreement. These agreements outline the separation of property upon a marital breakdown, amongst other things, and have the power to vary the rules of property division.
However, the law limits the enforceability of marriage contracts, so these agreements are not always foolproof, even if drafted by an experienced lawyer. Some limitations include:
- Division of the matrimonial home;
- Unenforceability of the marriage contract due to a material change in circumstances for either party;
- The possibility of undue influence or duress when the agreement was made;
The division of assets is calculated by determining the Net Family Property (NFP). This is calculated by determining the spouse’s Valuation Date value and the spouse’s Date of Marriage value. The Date of Marriage value is deducted from the Valuation Date.
The larger the date of marriage value, the lower your NFP, which would ultimately lower the equalization payment owing to your spouse. It’s advisable to keep detailed records of your financial records, including debts and liabilities in order to have an accurate measure of your Date of Marriage value.
3) Separation of Finances and Exclusions:
Certain property is excluded from calculating the NFP, for example, inheritance or damages from litigation. It is important to keep these finances separate from the marital property in order to ensure it remains excluded. If these funds are put into tangible items such as a joint bank account, the property becomes that of both parties.
One key property is the matrimonial home. This property is unique in that it is split equally between the parties upon a marriage breakdown, regardless of which party has legal ownership, pays the mortgage, or even if it was owned or inherited prior to the marriage. Any finances put into this property, whether it be for mortgage payments or renovations are absorbed into the marital property and can no longer be excluded. Upkeep of this property is better done through shared money.
3) Life Insurance, Trusts, and Corporations:
Trusts and corporations can also be mechanisms to protect your assets. They are typically more case-specific and would be best discussed with your Family Law Lawyer.
Once divorced, or if you anticipate a divorce, remember to update your beneficiary information from savings accounts, wills, and insurance plans.
2) When to Take Action:
Finally, these steps should be taken before divorce is looming. If taken only after the marriage begins to deteriorate the court may deem the conduct unconscionable.