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What You Need to Know About Divorce Before You Get Married

March 16, 2012

The last thing a couple about to be married should be worried about is that one day they may be getting divorced.  However, as Benjamin Franklin said, “An investment in knowledge pays the best interest.”  Although the overall rate of divorce in the United States is said to be declining (a notable exception, according to the National Center for Family & Marriage Research at Ohio’s Bowling Green State University, is divorce among people over the age of 50, 25% of whom are getting divorced now compared to 10% in 1990), it’s pretty safe to say that 1 out of 3 marriages ends in divorce.

At HoganWillig we receive calls every day from people who say they are considering divorce and want to know, “What are my rights?”  In many instances had they consulted with a knowledgeable family law attorney before getting married the answer to that question is often going to be considerably different (and probably a happier one) than if they hadn’t.

Although a well-drafted prenuptial agreement is the ultimate way to protect oneself in case a marriage doesn’t work out, in New York State even without such an agreement a party to a marriage can protect assets he or she owned before becoming married, and even some types of assets acquired during the marriage such as inheritances, should a divorce occur by knowing (and following) a few simple rules.

Here’s a common example.  While happily married Mr. Smith inherits $50,000.  He and Mrs. Smith have always kept a joint savings account that had been started with wedding gifts, so naturally he deposits the inheritance to that account.  From time to time, whenever they had a few extra dollars, the Smiths would add to the account; occasionally they would make withdrawals, perhaps for a vacation, to pay a child’s college expenses, or for a home improvement.  Years later the marriage is no longer a rosy one and the account has grown to be worth more than $100,000.  When Mr. Smith asks me what his “rights” are as to that account, not so illogically believing that at worst he’ll get the $50,000.00 he inherited and ½ of the rest of the account, I have the unpleasant task of telling him that the much greater likelihood is that he is going to have to split the account equally with Mrs. Smith.

Had Mr. Smith consulted with me or any of the family law attorneys at HoganWillig before marrying, he would have learned what he could do to protect against his spouse, in a divorce, being entitled to an inheritance he might receive while married.  While not every asset acquired during a marriage – retirement accounts being a notable exception – can be so protected, there are many more examples than Mr. Smith’s inheritance, making it a smart investment to consult with an attorney BEFORE getting married.