Should Weddings Come with a Warning Label? – Part IV – Make sure you have proof if you claim that you have separate property before you get married because you’re surely going to need it if you get divorced
In my last post I continued to lament that many people faced with a divorce would have benefitted from a bit of education on divorce laws even before they got married. In this post I continue down the aisle…more things people should know before they utter “I thee wed.”
- If you claim you have separate property when you get divorced, you have the burden of proving it. Hopefully you understand that in New York there are two kinds of property: (1) separate property and (2) marital property. If you get divorced, a court will only divide marital property; it has no authority to divide separate property. Separate property includes all the assets you had going into the marriage, any gifts or inheritances you receive after the marriage (as long as they are just to you and not to you and your spouse), and any awards you may receive for pain and suffering as part of a personal injury lawsuit.
- So let’s say after ten years of marriage it’s time to call it quits. You had a nice pension as part of your job when you got married which continued to increase in value during the marriage. Is it separate property? Marital? The answer is both! But, you have the burden of proving how much of it is separate property, or put another way, how much was the pension worth when you got married. If you think your pension company has just been itching to tell you what the value of your account was when you got married years ago, to put it politely, you would be wrong. Most pension companies only keep records for a couple of years. It’s up to you to provide those records or to come up with some proof as to what the value was at the time of the marriage. If you can’t produce the records, the entire pension may be classified as marital and your spouse may have a windfall. The same thing could be true for that Van Gogh you have over the fireplace. If you can’t prove you had it before the wedding, you may have a problem. If you aren’t entering into a prenuptial agreement before you get married, I suggest you take an inventory of all of your assets and save all of your account statements just before you get married and put them someplace safe, just in case….
To be continued.… Join me next time for more on tales of the uninformed when I talk about how it’s not difficult to accidentally convert separate property into marital property.