It has been said that the only constant in life is change. To that point, one should not plan on getting divorced, but one must consider that divorce always exists as a possibility. The following are steps that a person can take to preserve the separate and individual nature of his or her assets before and/or during marriage, so that they do not become marital property, distributable between both spouses in a divorce.

1. Plan Early. Especially where the parties have very unequal assets prior to marriage, or in the case of second or subsequent marriages where there are children of earlier marriages, even the exercise of discussing a prenuptial agreement can be very healthy. The parties can crystallize and communicate their feelings about their separate property and their expectations as to whether or not that separate property will become jointly owned. Then, if the marriage does ultimately end in divorce, a prenuptial agreement can be very useful in making the split a clean one.

2. Maintain Boundaries. Loosely defined, separate property is property owned by a spouse prior to the marriage or obtained by a spouse during the marriage either by gift or inheritance. The key to maintaining separate property as belonging to one individual rather than to both parties of the marriage is by keeping that property separate in nature. Therefore, if one party inherits a sizeable estate, it should be placed in a separate account under that party’s name alone and should not be commingled with joint funds. One should be aware that the appreciated value of separate property during a marriage can become joint property, as to that appreciated value, if the appreciation is due to the active participation of either spouse. For instance, if a wife inherits $500,000 and places it in a brokerage account under her name alone, and then actively trades so as to increase that investment to $800,000 as a result of her active trading, $300,000, the appreciated value attributable to her work during the marriage. Thus it becomes joint property, even though it has been maintained in a separate account.

3. Already married? Might not be too late. If, after marriage, the parties still want to designate certain property as separate each from the other, this can be accomplished by a postnuptial agreement. The problem with postnuptial agreements is that they require, like all contracts, consideration; that being, the exchange of a thing of value by each party. In a prenuptial agreement, the event of the marriage itself is part of the consideration. Of course, in a postnuptial agreement that has already occurred, so that is no longer available as consideration. Another obstacle to obtaining a postnuptial agreement is that one of the parties may have no incentive whatsoever to sign such an agreement, if it would leave that spouse with fewer of the assets that could otherwise be claimed as jointly owned. So in not such a roundabout way, consideration again becomes important as an incentive to each party to enter into a postnuptial agreement.

4. Don’t waste time and money on unnecessary litigation. Procedurally, standard litigation machinery is not suitable for divorce. It is lengthy, expensive, and frustrating under the best of circumstances. Now in the times of judicial economy, where courthouse staff is overburdened with mountains of paper to consider and process, the length of time from filing a summons through the discovery process, motion practice, trial and post trial practice not only takes years, but is ill suited to resolve issues between people who must necessarily deal with each other as long as their children live. Alternative dispute resolution is commonly used in divorce matters. Mediation is probably the most common choice because of the time and financial efficiency it provides.

However, for those who simply cannot achieve their goals through mediation but require more structure and support, the collaborative law model utilizes teams of lawyers and mental health experts for each party to achieve a settlement without litigation. The services of other experts, such as financial professionals and mental health professionals working as child specialists, can also be utilized. Of course, if one spouse adamantly refuses to negotiate towards a settlement, one has no choice except to proceed by litigation. However, to the extent that the parties can agree even only on the issue that they do not want to waste time and money, either mediation or collaborative law is a better choice.

5. Don’t be afraid to be fair and play well with others. Unlike a business transaction, the permanent results of an embattled divorce are scars left on the parties and their children. To the extent that you can demonstrate during the most difficult of transitions to your children how to take the high road by doing so yourself, you will earn their trust and gain their respect. This will also launch them on a healthy trajectory toward forming their own adult relationships. In contrast, children of parents engaged in vicious conflict, even adult children, feel and express disappointment in their parents and often take sides. Obviously, this damages the parents as well as the children. The casualties of divorce can be minimized when you work through the issues so that the ultimate result meets the needs of both parties and adheres to a legitimate rationale.

Even if you can’t achieve all of the above five steps, it’s never too late for steps four or five, and these are the one’s that will frequently save you the most money and heartache.

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Susan Freedman is an attorney practicing in White Plains, New York. Ms. Freedman practices primarily in the areas of real estate and divorce law and also provides mediation services.

Contact Susan:

Susan Freedman, Esq.

399 Knollwood Road, Suite 212

White Plains, NY 10603

Telephone: (914) 948-1400

sf@susanfreedman.com