Prenuptial agreements are a valuable tool for helping couples designate before they get married which assets will remain theirs if they divorce. This can be particularly helpful in a community property state like Texas.
Depending upon how the prenup is written, couples concerned about keeping at least some of their current assets separate once they’re married may need to pay attention to ensure that certain assets (bank accounts, homes and other property) remain in their name only. The could be true with debts if they don’t want to end up responsible for their spouse’s shopping binges or expensive taste in cars.
Unfortunately, couples’ intentions when they draft a prenup could potentially go up in smoke because of something called commingling. If one spouse’s separate property is commingled with marital property, the other spouse might be able toseek some of it in a divorce. Or, even if they can’t ask for the separate portion of the accounts, the account holder may have to go through a lengthy and expensive tracing process with a forensic accountant to sort through it all.
Following are some common examples of instances where assets that you brought into the marriage as separate property become comingled with communityproperty:
- Your investment account automatically deposits and invests interest or dividends from that account.
- You pay the mortgage on a home owned prior to marriage with funds earned during the marriage.
- Your spouse uses their credit card (or you use a joint credit card) to pay for maintenance and repairs for a vehicle that you received as a gift from your parents.
- You put some or all of your inheritance towards a jointly-owned home or other property or deposit it in a joint account.
You get the idea.
In community property states, anything earned or acquired by either person after they get married is presumed to be community property that belongs to both of them. That includes things that are purchased by just one spouse.
As you draft your prenup, your attorney can advise you of further ways to avoid messy commingling of assets. They can also help you work to include provisions that can help you protect assets you acquire on your own during the marriage.