Will learning about asset protection in divorce be a waste of time if you live in a community property state? How does one protect assets before or during a divorce? Common steps to divorce asset protection for gifts, family heirlooms, and real estate. You will need to consult with a divorce lawyer, professional appraiser, and estate planner. Definition of Equitable Distribution and fair market value of assets in divorce.
How to protect your assets during a divorce? Protecting assets through a divorce can be a complex financial process further complicated by the emotional devastation. If you are going through a divorce it may be important to you to determine ahead of time what your assets are and how you will protect them from your spouse.
The first step will be to hire a lawyer familiar with the laws for dividing property in your state. Good legal council will prove invaluable in defending your claims to property and can give you names of appraisers and accountants to help your case. Your divorce lawyer will also assist you on how to remove any Powers of Attorney granted to your spouse for control of your property and finances.
There are several steps you should consider when trying to protect your assets during Divorce:
- Identify everything that was given to you as a gift or family heirloom.
- Identify community property.
- Hire a professional appraiser.
- Figure out how you will split retirement and physical assets.
Identify Gifts and Family Heirloom to Protect Assets During Divorce
A camera will prove to be your best friend during a divorce. You should make a list of all items which were given to you before and after the wedding and take pictures of these items prior to removing them from the residence. Once you have compiled your list you should remove all your personal items to a location not easily accessible to your spouse.
Your spouse will be within their rights to claim any items you leave behind in the residence and do not immediately claim. If you or your spouse left the residence voluntarily, either of you is entitled to return at any time and retrieve belongings. If locks have been changed, except in the case of a court order, you are within your rights to have a locksmith open the doors. Your next step will be obtaining, if possible, written proof of who gave you the items and when they were received.
Community Property Assets
Community property of assets refers to the belongings shared by you and your spouse, such as the furniture, pots and pans, etc. It is important to take pictures of these belongings as well before you remove the items you wish to claim as your own. Photographs are especially valuable if there are expensive items you would like to have but did not have the ability to move and you feel your spouse may try to take them. All photographs should be kept in a secure location not readily accessible by your spouse.
Hire a Professional, Independent Appraiser for Divorce Asset Protection
Division of property during a divorce is determined by the fair market value of the disputed items to ensure one party is not being favored over the other during settlement. An appraiser will be necessary to determine accurate estimates, although you should consult your lawyer on finding a qualified individual.
Using the same accountant who handled your assets in the past may seem suspicious and a court may order another appraisal or rule in favor of your spouse’s accountant. It is critical that an appraisal be straightforward and unbiased for the protection of assets during Divorce.
Estate Planner Consultation to Divide and Protect Assets During Divorce
When considering how to divide assets prior to divorce settlement, it is wise to consult a professional estate planner or financial analyst. For example, if you are thinking about selling your home it may be wise to do so prior to settlement since you are entitled to deduct up to $500,000 of the sale from capital gain taxes.
Selling the home after the divorce is final and reduces your benefit to only half of the sale price. Retirement assets and stocks should also be discussed. If you and your spouse choose to split the retirement benefits you must sign a Qualified Domestic-Relations Order (QDRO) which notifies the pension sponsors how to pay the benefits. Although you cannot take stocks in your spouse’s name you may be entitled to the proceeds once they are sold.
Exceptions to the Rule on Divorce Asset Protection
Some states, such as New York, are known as “equitable distribution” states. “Equitable” mean “fair” and assets will not be divided right down the middle based on their fair market value. Division of assets according to New York Divorce law states that all property obtained prior to the marriage still belongs to the individual and all property obtained afterwards will be distributed by the court based on established guidelines.
The factors a court considers in equitable distribution states for divorce assets are:
- The difference in income and property from when the marriage began to the date divorce was filed.
- The age of both individuals and how long they were married.
- The needs of a parent who has won full custody of children involved (i.e. will they need the house to properly care for the child?)
- Any loss of pension or inheritance.
- What contributions the parties made to acquire the property.
- Future earning potential of both parties.
- Tax consequences.
If you are considering divorce it is wise to consult a lawyer as soon as possible to ensure the protection of your assets and help you understand your rights as they pertain to individual state law.
Estate Street Partners is available for consultation on how to protect your assets during and before a divorce. Please call our toll-free line at 888-93ULTRA (888-938-5872).
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Questions that usually come up next
People exploring Asset Protection in Divorce: How to Protect Assets From Divorce often move next to the practical questions: when to act, what to fund, and how much control can stay with the original owner.
Details that often change the outcome
- Timing matters because inheritance, divorce, and family transitions can change the right planning move.
- Control matters because the grantor, trustee, and beneficiary each affect how protected the structure really is.
- Funding matters because a trust only protects what has actually been transferred into it.
What usually helps after the main answer
Many readers narrow the decision by comparing Beneficiary of Trust, Revocable vs Irrevocable Trust, and Grantor vs Trustee vs Beneficiary. When the question turns from reading to implementation, many readers move from these guides to a direct planning conversation.
