While the best way to protect your investments in divorce starts long before the divorce ever becomes an issue, i.e., through a prenuptial agreement, trust, estate planning, or other pre-divorce strategy; many people do not have such plans in place. In the absence of a pre-divorce plan, the burden is on you to prove that your investments are separate property not subject to division.
Below are three easy ways you can help protect your investments in divorce:
1. Inventory all your investments. Any investments you owned before the start of your marriage are considered separate property to which your spouse is generally not entitled. Additionally, any investments you received by gift or inheritance (or made using monetary gifts or inheritances) are also considered separate property.
2. Designate a new beneficiary on your life insurance and annuity contracts. To keep your investments protected which may include life insurance and annuities, be sure to remove your spouse as a beneficiary as early as possible. Otherwise he or she may be entitled to the proceeds of these plans if you died, since these types of investments are non-probate assets and are not affected by any updates to your will. Remember that in California (and possibly other states), once you file for divorce (or legal separation or nullity or paternity) or have been served with divorce papers, -automatic temporary restraining orders (ATRO’s) go into effect (hence the name “automatic”). These ATRO’s prohibit the parties from changing beneficiaries or canceling insurance policies once the legal action has started. Also bear in mind that as a married person you are subject to fiduciary duties, which means before you engage in any “divorce planning” you really should consult with an experienced divorce attorney.
3. Prevent access to safety deposit boxes. If your spouse is a named signor for your safety deposit boxes, you will want to prevent them from unilaterally (i.e., without you) accessing any investments contained within as soon as possible. This is especially true if there are bearer bonds, gold bullion, or other investments that do not have title. Even if the investments in your safety deposit box are relatively modest, it’s a good idea to protect these as they can be overlooked or forgotten as the divorce proceeds.
Of course, the three above tips only cover relatively simple types of investments. Individuals with significant investment holdings will need to consult with various professionals who can help develop a comprehensive protection plan tailored to your needs.
You need a knowledgeable divorce attorney on your side. An experienced attorney can help protect your investments in a divorce and will understand the challenges of representing high net-worth individuals, and can help you keep as much of your investments as you can.