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Protecting separate property in a second marriage

Many people enter second marriages assuming that the property they bring to the marriage will still be theirs if the marriage ends in divorce. Unfortunately, this isn’t always the case. Things you do during your marriage can cause separate property to become marital property-and subject to division with your spouse if your marriage ends in divorce.

While no one plans for a marriage to end in divorce, it happens often enough so that it is important to be prepared. As many as 60 percent of second marriages end in divorce.

The distinctions that determine what is marital property and what is separate property are very complex. Only an experienced family law attorney can help you navigate the complex legal environment affecting your assets. While the general rule is you take out of a marriage what your bring into it, there are many exceptions:

  • If you refinance your home during your marriage, the mortgage company may want you to add your spouse’s name to the deed. Doing so will make your house marital property.
  • If you own a business and your spouse makes contributions to it during your marriage, or the business appreciates during your marriage, your spouse may be entitled to an equitable share.
  • If you deposit your money in a joint checking account, it will become marital property.

The burden of proving that an asset is your separate property falls upon you. If you can’t show that an asset is your separate property, it is marital property. For this reason, it’s important to keep; good records to prove that your separate property is yours.

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