When people think about protecting their finances in marriage, prenuptial agreements (prenups) usually come to mind. But what if you didn’t sign a prenup? Are you left vulnerable?
The good news is that you still have some options, even if you got married without a prenup. At Jointly, we believe in empowering couples with practical tools and knowledge to help plan for the future. Here’s what you need to know.
What Does A Prenup Do?
A prenup is a legal agreement signed before marriage that outlines how property, debts, and other financial matters will be managed during your marriage, and if it ends. It can help you: Protect personal or business assets, clarify responsibility for debts and simplify property division in divorce.
Without one, provincial laws determine how your assets are divided. The provincial systems have been designed to try to implement what would be the most fair for the most people, but those laws may not align with your wishes, or the circumstances of your relationship.
Understanding Asset Protection in Marriage
What Happens in a Divorce Without a Prenup?
If you divorce without a prenup, the law in your province governs how assets and debts are split. Generally, family property (assets acquired during the marriage) is divided equally or fairly, depending on the rules in your province. Personal property owned before marriage, inheritances, and gifts are typically excluded (not divided) depending on how they’ve been treated during the relationship.
Why Choose Marriage Without a Prenup?
Some couples feel that starting their marriage without a formal agreement builds trust. Others may believe that a prenup isn’t necessary if they’re starting with few assets.
We think prenups are useful for everyone. Couples at every income level and life stage can use prenups as a powerful tool for protecting their financial futures and building a strong foundation of transparency and trust.
However, if you got married without one, you still have some options.
Alternatives to a Prenup: Strategies to Protect Your Assets
Keep Property Separate
One of the simplest strategies is to keep your previous property (assets you owned before marriage) separate from your family, or marital, property. Avoid mixing personal and shared funds.
If you separate without a prenup, you’ll have to prove which assets you brought into the relationship. This is significantly easier to do if you’ve kept these assets separated all along.
Consider a Postnuptial Agreement
A postnup is like a prenup, but it’s signed after you’re already married. If your financial situation changes or you realize you want a formal plan in place, a postnup can help.
It covers the same subject matter and serves the same purpose, so if you got married without an agreement, it’s not too late! You can build a postnup on our platform today.
Use Trusts for Wealth Protection
Setting up a trust can help safeguard assets by removing them from your personal ownership. Trusts must be carefully structured, especially if created during marriage, so legal advice is essential if you want to go this route.
Document Gifts and Inheritances
Keep clear records of any gifts or inheritances you receive. Gift letters are commonly used to show who is the intended recipient of a financial gift (whether it’s for one or both members of a couple). This comes up a lot when one person’s parents are providing assistance with the down payment for a home.
In many provinces, gifts and inheritances are treated as separate property, unless they’re mingled with joint assets. Remember, it’s easier to prove what is yours alone if you kept it separate all along.
Maintain Separate Bank Accounts
While shared accounts make managing household finances easier, maintaining separate accounts for personal assets can make division simpler if separation occurs.
One way to accomplish this is by using a joint account that is only used for shared expenses, and keeping your other accounts separate. Keep in mind that just because it’s in a separate account, doesn’t mean you don’t have to share it. If you acquired it during the marriage, it likely qualifies as family property unless you have an agreement in place that says otherwise.
Avoid Joint Ownership of Previous Property
Think carefully before adding your spouse’s name to the title of property or bank accounts that you had before the relationship. Joint ownership can automatically transform separate assets into family property.
Use Mediation to Protect Interests in Divorce
If you separate without a prenup, using a neutral mediator can help you and your partner reach a fair financial agreement without the stress and cost of court battles.
Professional Guidance for Protecting Your Assets
Consult a Family Lawyer for Divorce Property Division Advice
If you’re getting divorced and you don’t have a prenup in place, make sure to seek legal advice. An experienced family lawyer can help you understand your rights and come to an agreement with your ex-spouse in case of separation.
Explore Financial Planning Tools for Wealth Protection
Beyond legal advice, financial advisors can help you build a plan to grow and protect your wealth before or during your marriage, whether that includes investments, insurance, trusts, or careful property management.
Common Mistakes to Avoid in a Divorce With No Prenup
Don’t Hide Marital Assets
Trying to hide assets during divorce can backfire legally and financially. Courts take dishonesty seriously and it can harm your credibility in the divorce process.
Avoid Rushing to Sell the Marital Home
Selling the marital home too quickly can lead to regrets. Take time to explore whether buying out your spouse’s share or negotiating other arrangements is a better option for you.
FAQs
What Is the Best Way to Separate Marital Property?
The best way to ensure your property is managed in a way that works for both of you is to get a prenup or a postnup. You should also keep clear records and avoid commingling assets. Separate ownership and documentation are key.
How Do Trusts Help Safeguard Assets in a Non-Prenuptial Marriage?
Trusts can remove assets from your personal ownership, potentially protecting them from division if structured properly. Professional advice is crucial to make sure the trust is recognized in divorce.
How Can Jointly Help Me Protect My Assets Without a Prenup?
At Jointly, we make relationship planning easier. If you’ve decided you’re ready for a postnup, click here to get started. You can also continue reviewing our Learning Centre to better understand how family law applies to you. Our accessible online tools and clear legal information empower you to make informed decisions that fit your life, no lawyer required.
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