Millennial’s Guide to Planning for Marriage/Non-Marital Domestic Partnership
From the Perspective of a Family Law Attorney
*This article does not constitute legal advice, nor is it a substitute for an attorney’s assessment of your specific circumstances. Should you have any questions, contact Mary C. Huff, Blankingship & Keith, P.C., (703) 691-1235, Mhuff@bklawva.com
Openly Discuss Finances Beforehand. Have open, honest, and detailed discussions about current finances and future financial plans well in advance of a wedding date or combining households. Many people may tend to avoid doing this for various reasons, including feelings of awkwardness. However, this is imperative for planning purposes and to set expectations. There are ways to have this conversation in a loving, respectful manner, without killing the romance by offending your partner.
Example: “I think it would be a good idea if we talked about our finances, since we are intending to share a life together.”
Example: “My current financial position includes [these assets] and [these debts].”
Example: “My plan over the next [five] years is to accumulate wealth by [doing this]. I think it is fair if I keep the property and accounts that I had before we [marry/move in together]. Likewise, I know that I am responsible for the debts that I had before [marriage/starting a life together]. As we earn money while we are married, acquire assets and related debt, I have no problem with sharing those finances and that property.”
Example: “I appreciate you respecting my feelings on this and supporting this approach. This is fair based on work that I have done and does not diminish my commitment to you and us.”
Keep Separate Funds and Property Separate. Regardless of whether you sign a pre-nuptial agreement, a domestic partnership agreement, or not: open new accounts soon after marriage or cohabitation, do not add your partner’s name to your existing accounts, and do not re-title property.
Your Earned Income. If you marry, your wages and other income earned during marriage may be considered marital property under the law. To avoid “tainting” your pre-marital separate funds and property, during marriage you should deposit your earnings into a new account that you and your partner consider to be marital monies.
Financial/Investment Accounts. Keep the accounts that you had before marriage separate. To the extent possible, do not spend from these accounts to pay joint/marital/family expenses and do not deposit marital funds into these accounts. Further, do not add your partner’s name to these accounts, even as an authorized user and do not provide them with an associated debit card. If the financial institutions change during your marriage, transfer the funds into another account in your sole name. Additionally, open a new checking account and a new savings/money market account soon in time after your marriage to use for marital purposes. You can deposit your paychecks that you earn after marriage into that new account if you choose to do so. You can also jointly title the new accounts if you like. You should also keep your pre-marital brokerage accounts separate and open a new stock account if you intend to acquire additional investments. If you sell or trade stock shares from a pre-marital account during your marriage, keep the new shares or proceeds in the same pre-marital brokerage account. Or, if you intend to spend the proceeds of the transactions, deposit the funds into the pre-marital checking account that you are maintaining in your sole name. Maintain your account statements from before and after marriage to show that the accounts have been maintained separately.
Real Estate. If you own real estate before you are married, do not add your new spouse’s name to the title after marriage. If you intend to use the proceeds from the sale of a pre-marital property to purchase a new property during the marriage, title the new property in your sole name. Alternatively, if you do not have a pre-nuptial agreement or a domestic partnership agreement, before you purchase the new property, discuss with your spouse whether he or she would be willing to sign a short, one-page agreement acknowledging that the sales proceeds of the pre-marital property are your sole property and they will maintain that characterization. Most spouses are amenable to this, or at least understand the fairness, and this can be more palatable than a pre-nuptial agreement.
Note: A spouse’s interest in the property of the other spouse is not dependent upon title. Notwithstanding, you should still follow these tips and find additional ways to express your intent for your pre-marital property to remain your separate property and otherwise avoid gifting property to the marriage.
Retirement Benefits. This tends to be trickier to address than other forms of property. Particularly because certain defined contribution retirement benefits are governed by federal law that affords rights to spouses, including requiring certain notice and spousal signatures before funds can be withdrawn. If possible, financially prudent and practicable, just prior to marriage you can roll your pre-marital retirement benefits into a privately held account in your sole name (i.e. in a rollover IRA). If that is not feasible or financially prudent (i.e., in the instance of military or civilian government benefits), then maintain copies of your account statements reflecting balances at or near the date of your marriage in your records for the entirety of the marriage so that you can prove the amount that will form the basis of your pre-marital, separate property. Under Virginia law, you are entitled to retain this amount, plus or minus the gains/losses, as your sole and separate property, but you must have proof. An account statement near in time to the date of marriage is preferable to a screen shot. If you roll your separate funds into different retirement accounts, maintain statements showing this in your records. Those documents are required to “trace” the funds and protect your interests.
Gifted/Inherited Funds. While these funds are your separate property under Virginia law, always deposit gifted or inherited funds into the account that you had from prior to any marriage/that you are maintaining in your sole name. Spend these funds on your own personal expenses, to pay your pre-marital debt, or to maintain separate property. If you spend gifted or inherited funds on marital or joint expenses, there is no ability to “claw back” these funds and related gains unless you can “trace” the funds with documents. Even then, the funds might be spent and subsumed in marital property or expenses. As a best practice, if your family gifts money to you, ask them to write the check payable to you alone and note the purpose on the notation line. Keep copies of such checks, as financial institutions are only required to keep records for a limited number of years, so gathering documents in the future might be impossible or expensive and burdensome.
Co-Tenancy Agreements / Requirements in Deeds. If you are purchasing real estate (including a condominium) with a person to whom you are not married, consider consulting with a real estate attorney to draft a simple co-tenancy agreement for you. This will delineate rights and responsibilities. Additionally, some states permit property owners to specify percentages of ownership in the contents of a deed. For example: “John Smith is a 70% owner and Jane Doe is a 30% owner.” This is helpful to document an agreement where one person contributes a higher percentage of the down payment and will pay a greater share of the related expenses going forward.
Note: Consult with a real estate attorney to determine whether it is in your best interests to own property as joint tenants with no reference to survivorship (“tenants in common”) or as joint tenants “with the right of survivorship.” In Virginia, unless survivorship language is specified in the deed, the default is that the property is co-owned as tenants in common with no right of survivorship. Even if you are not married, you may want to preserve your ownership rights to the whole asset and prevent your partner’s share of the property from passing to his or her heirs, personal representative, or from being otherwise distributed/used to pay debts.
General Tips for Spending / Effect on Support. Set a budget early in the relationship or marriage and revise it as often as is necessary. Have frequent conversations about spending and expenses, even if it is not convenient and despite whether life obligations are commanding your attention. Review shared accounts and spending. While finances can be a source of tension or disagreement in personal relationships, do not avoid related conversations and work to reach agreements. Spending habits and expenses during a marriage create a standard of living that will be considered if spousal support (also called alimony or spousal maintenance) is determined whether the spending and expenses are mutually agreed upon or not. Just as with conversations about finances prior to a marriage or a partnership, there are ways to have these conversations in a loving, respectful manner without upsetting the marital apple cart. See the examples below. Likewise, make efforts to ensure that both partners or spouses are saving or acquiring assets if that is important to you. Upon dissolution of a marriage, spouses are required to share marital property and money with the other spouse even if the other spouse was a spendthrift. Further, the legal standard for proving “marital waste” in Virginia includes a high burden that goes beyond imprudent spending, so there may not be a way to “claw back” funds spent.
Example: “Let’s find time this week to sit down and look at our spending on the credit card accounts.”
Example: “I was doing my monthly review of our account and noticed that we have been spending a lot on ________. Let’s talk about this and look at our budget.”
Example: “We have not curbed spending on ________. I think we need to get that expense down, so let’s spend less on that this month.”
Example: “We still have not curbed spending on ________. I do not agree with this expense, so let’s do something different or find another expense to cut/way to save.”
Business Interests. As a general rule of thumb, if you own any portion of a business or intend to start your own business, you should seek the services of a domestic relations/family law attorney and have a pre-nuptial agreement or domestic partnership agreement that outlines rights related to business interests prior to marriage or entering into a domestic partnership. Business agreements and other contracts and organizational documents do not govern one spouse’s interest in the other spouse’s business interests. A personal contract is the most effective and prudent way to address these rights and avoid the potential expenditure of significant amounts of money if a marriage or domestic partnership goes south.