Quora Answer: How to Ensure You Do Not Lose Assets in a Divorce, without a Prenuptial Agreement?

The following is my answer to a Quora question: “If you do not have a prenuptial agreement, what is the best way to ensure that your partner will not take your money in a divorce?”

Prenuptial agreements are not as effective as people imagine them to be.  They do not, as a general rule, cover child support and alimony.  A prenuptial agreement cannot preclude the payment of either, although it may set some mitigating guidelines.  However, this is the primary reason why people create such agreements.

The most effective means to prevent your soon-to-be former spouse from acquiring most of your estate would be to transfer them to an irrevocable trust.  An irrevocable trust is a distinct legal entity, and marital claims cannot be made against assets in the trust, provided they were not marital assets when they were transferred to the trust, and the ownership may be disputed.

If the intent it to protect an heirloom, such as inherited property, a prenuptial agreement would likely suffice.  But property and assets purchased jointly are marital assets, so shares of it may be transferred to the trust.  Earning post marriage, however, may be run through the trust.