Towson, MD asked in Divorce for Maryland

Q: Im planning marriage. no children. I own houses and large bank accounts. she has zero. if divorce is this protected

i trust her after dating 12 years but I was planning on a prenup and she wont sign.

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1 Lawyer Answer
Mark Oakley
Mark Oakley
  • Rockville, MD
  • Licensed in Maryland

A: Property acquired before marriage is not subject to division as marital property in divorce, so long as you can prove the property pre-dated your marriage and was not in part paid for or contributed to with funds earned after you married, which would result in converting at least some portion of those assets into marital property. For instance, real property titled in your name subject to a mortgage, which you continue to pay using your income after you are married, would convert a portion of the real property into joint marital property to the extent of those post-marital mortgage payments. Same goes for capital improvements to real property after marriage, where those improvements (a new roof, new kitchen, etc.) are paid for with income earned after the date of marriage, unless you can trace those payments to a non-marital source. Same for retirement contributons, to the extent you contribute during the marriage. If you have investment accounts, such as an IRA or other fund in your separate name, stop contrbuting to those after the date of your marriage; instead, open new accounts to contribute to after the date of marriage, so that only those new accounts meet the definition of marital property subject to division upon divorce. Because money is fungible, the more you commingle your income earned during the mariage into an account with premarital funds, the more likely a court would determine the entire account is marital property since you cannot reliably trace each dollar in the account to a premarital source. While forensic accountants can perform an analysis and valuation of premarital value in an account and its investment experience separate frrom contributions after the date of marriage, a judge is not required to accept that type of analysis. It is better to keep all such assets walled off to grow on their own, without new contributions during the marriage. The biggest problem faced by divorcing couples is in tracing and proving their pre-marital assets, which can only be done by maintaining meticulous records of the value of those assets and title documents as of the date of marriage and all contributions to those assets after marriage. Banks and financial firms no longer maintain records more than 7-10 years old, even in electronic form. The burden is on the spouse claiming property is premarital to prove that with evidence. Therefore, meet with a family law attorney and go over how to document your assets prior to getting married, and how to manage assets after you get married with adequate record retention. Keep in mind, any jointly titled asset will be deemed marital, regardless of the premarital source. Gifts and inheritances received after marriage are mon-marital so long as held in your separate account or name.

Consult a lawyer as to how to approach your fiance about signing a prenup, since you can agree to guarantee her a portion of your assets which she would not otherwise have a right to based on their pre-marital status (which you will maintain). Of course, her refusal to consider a prenup may also give you pause.

If you have children from a prior marriage and want to secure their inheritance, there are things you will need to do to achieve that end. A prenup can adress that issue, but if she will not sign, then you need estate planning, because if your marriage ends in your death and not by divorce, then your surviving spouse is entitled to not less than 1/3 of your estate regardless of what your will may say, or if no will, 1/2 of your estate. The right of a surviving spouse to assets passing under their spouse's estate is different than in divorce, and recently has been expanded to reach assets that ordinarily pass outside the estate, such as certain trust assets and assets with beneficiary designations.

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