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WonderingFiance

Should I get a prenup?

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Per our divorce agreement, my ex-husband has to give me $150,000 over the next few years. It's not alimony - he is buying me out of the properties we bought while we were married. In about a month, I will be getting married for the second time. I'm wondering if I need a prenup to protect my $150,000 in case this second marriage ends in divorce too. 

 

Here are some questions running through my head:

 

Is the $150,000 still considered mine alone if I physically receive it after I get married?

 

If I take the $150,000 and buy a house that we both live in, is that house half his if we get divorced, or am I entitled to get back my $150,000 investment before we have to spilt it 50/50?

 

I live in Louisiana, which is a community property state. I was googling it and I read this:

 

"Property one spouse owned alone before the marriage, or acquired by gift or inheritance during the marriage, is that spouse’s separate property, as long as the spouse can prove the claim with financial records or other documents."

 

Does "property" include cash? Are divorce settlements protected? This is the only thing we would need covered by a prenup - our income is about the same, and neither of us has any other assets. I'm just wondering if this money is already protected since it was technically acquired before the new marriage. If it is, it would save me the trouble of having to get a prenup - which is not something I really want to do. 

 

Thanks in advance for your help!

 

 

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Not clear why you wouldn't be talking with your divorce lawyer about this.

 

Louisiana is not a "kitchen sink" state where separate property is up for grabs (in some states, whether or not there's a need).

 

Yes, "property" for the purposes of "community property" means "asset".

 

If appears you're not clear on what community property means if you're asking about what if you use that $150k to buy a house.  It contemplates money received during the marriage.  (One presumes you aren't talking about putting it in your name alone.)  I would discuss with a LA family attorney how a divorce court would come down on the topic of $$$ received after you marry but related to a pre-marriage divorce settlement agreement.  (LA law is more weird than other U.S. states, as you know.)

 

To rebut the presumption that such an investment would be a gift to the marital community/pot, even if you can trace the $$$ to a separate bank account and separate pre-marital source, I would (if he rejects the idea of a pre-nup or post-nup) ensure that there's a document in which he acknowledges that this is your separate property investment and it would be repaid to you before any equity split in the event of a divorce.  (Obviously, I also would not deposit that money into a joint bank account.)

 

If you anticipate divorce before marrying, it's not a bad idea to discuss with a family law attorney the issue of a pre-nup.

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Is the $150,000 still considered mine alone if I physically receive it after I get married?

 

 

 

 

 

I could be but you would have to take precautions that include, but might not be limited to, putting the money in a separate account in your name only with only that money in it, and never adding to it, and never directly using it for marital expenses.

 

 

 

If I take the $150,000 and buy a house that we both live in, is that house half his if we get divorced, or am I entitled to get back my $150,000 investment before we have to spilt it 50/50?

 

 

That's where the risk is that the house might become community property and for that you need to consult a divorce attorney to learn how to potentially retain the house as your sole and separate property.

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I'm wondering if I need a prenup to protect my $150,000 in case this second marriage ends in divorce too.

 

Need to get one or....??  If your concern is putting the $150k (or whatever portion of it remains at the time of the hypothetical future divorce) off limits in terms of a divorce, a prenup would serve that purpose, but you can do it without a prenup as well (by keeping the $$ in a separate account from any community property and for which you have exclusive control).

 

 

 

Is the $150,000 still considered mine alone if I physically receive it after I get married?

 

"Mine alone" is not a term that has any legal meaning.  Given the source, it will be, at the time you receive it, your separate property.

 

 

 

If I take the $150,000 and buy a house that we both live in, is that house half his if we get divorced, or am I entitled to get back my $150,000 investment before we have to spilt it 50/50?

 

Depends on a lot of facts that we can't predict.  However, presumably, $150k isn't going to buy much of a house and would only be a down payment.  In that case, if you use community property funds to pay the mortgage, your husband will acquire a community property interest in the house.  Calculating the value of that interest will only be possible at the time of divorce.  Likewise, if you put the title to the house in both names, the house could be considered community property entirely.

 

 

 

Does "property" include cash?

 

Yes.

 

 

 

Are divorce settlements protected?

 

"Protected" is not a term that has any legal meaning in this context, but I assume that, by this point, you know the answer to your question.

 

 

 

This is the only thing we would need covered by a prenup - our income is about the same, and neither of us has any other assets.

 

Really?!  You mean you own no clothing?  No car?  No appliances or furniture?  If true, that would be quite astounding.

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Really?!  You mean you own no clothing?  No car?  No appliances or furniture?  If true, that would be quite astounding.

 

Haha I stand corrected. I should have said "we have no assets worthy of of a prenup."

 

 

 

I could be but you would have to take precautions that include, but might not be limited to, putting the money in a separate account in your name only with only that money in it, and never adding to it, and never directly using it for marital expenses.

Thank you adjusterjack!

 

 

 

Not clear why you wouldn't be talking with your divorce lawyer about this.

 

 

 

If you anticipate divorce before marrying, it's not a bad idea to discuss with a family law attorney the issue of a pre-nup.

 

My divorce lawyer is in NY, and I live in Louisiana now...and yes I've heard how weird the law is down here! I don't anticipate getting divorced, but I'm not young and naive enough to think it can't happen...again.

 

 

 

Thank you all for your answers! Based on your responses, I've decided I'll deposit the money into a separate account, and I'll also have him sign something acknowledging (1) the account is my separate property and is not part of the community property, and (2) if I pay more than him on the downpayment of a house, any excess that I paid is to be repaid to me before any equity split in the event of a divorce.

 

 

How does that sound?

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I'd do a little further hunting/researching on LA divorce law. 

I don't know that I'd base a decision about a pre-nup on what you two bring into the marriage, though $150k isn't what I'd sneeze at.  (And if you have no retirement accounts set up, even if you're very young, I don't know that I'd be sinking much of that dough into real estate.)

 

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Hi WonderingFiance,

 

Welcome the forum!  It looks like you have already received some wonderful responses from the Answers community!  As noted by the other members, if you keep those funds separate from any community property funds and are able to trace monies back to a separate account in the event of the purchase of some real estate, you may have a better chance at recouping those monies in the event of a divorce.  If you wish to consult with a new divorce/family law attorney on this issue, you can find a number of local divorce attorneys in the FindLaw directory.

 

Additionally the following FindLaw articles might be of help:

Thanks for stopping by,

 

The FindLaw.com Team

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Based on your responses, I've decided I'll deposit the money into a separate account, and I'll also have him sign something acknowledging (1) the account is my separate property and is not part of the community property, and (2) if I pay more than him on the downpayment of a house, any excess that I paid is to be repaid to me before any equity split in the event of a divorce.

 

 

How does that sound?

 

Sounds fine to me, but I'm an anonymous stranger who will suffer no adverse repercussions if something goes wrong.  :-)

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Thank you all for your answers! Based on your responses, I've decided I'll deposit the money into a separate account, and I'll also have him sign something acknowledging (1) the account is my separate property and is not part of the community property, and (2) if I pay more than him on the downpayment of a house, any excess that I paid is to be repaid to me before any equity split in the event of a divorce.

 

 

How does that sound?

 

Sounds good but what you are describing is a "pre-nup" and I urge you to have a Louisiana divorce lawyer draw up the paperwork for you and advise you on preparing for future contingencies.

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Hello WonderingFiance,

 

Congratulations on your future marriage. To reinforce what has already been said, The suggestions posted here all make valid points. The statements made in should be also be considered and discussed with an attorney.  The decision to get a prenup is very important and I realize you have said that you do not want to get one unnecessarily. However you should still get input from your attorney when making a final decision.  Here are some helpful links that explain prenuptial agreement’s purpose:

 

 

Hope this helps.

-The Findlaw.com Team

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