I Didn’t Get a Prenuptial Agreement, Now What?

What you need to know about claiming separate property in a divorce.
Prenuptial Agreement

Prenuptial agreements can help you protect your assets in the event of a future divorce, but if you are one of the many Coloradans without a prenuptial agreement, there are still statutory protections for your separate property if you find yourself going through a divorce. In a nutshell, “separate property” is property that you had prior to the marriage, property that you received as a gift or inheritance and property that was acquired in exchange for other separate property.  Sounds straightforward, right? Unfortunately, it’s not. If you are planning to claim separate property in a divorce, it is important to know the following:

Proving separate property 

Before dividing marital property in a divorce, the court is required to set aside an individual’s separate property. To do so, the person claiming separate property must produce evidence to prove their claims. The burden of proof is on the person making the separate property claim, and if they are unable to produce evidence in support of their claim, the property is presumed to be “marital” property and will be divided as part of the divorce.

A key part of proving your separate property is demonstrating that you kept the property separate. If you jointly titled your separate property at any point during the marriage, the court is likely to determine that the property is gifted to the marriage and that it has lost its classification as separate property.

Another key part of proving your separate property is sufficiently tracing it to a current asset. For example, if you had a 401(k) before the marriage, but it was rolled into an IRA during the marriage, it is your burden to produce the documents to show the rollover from one account to the next to preserve your claim.

It is important to remember that banks typically only keep financial statements for 7 years. This means that you will need to preserve your own historical bank and financial records to effectively prove your separate property claim as of the date of marriage if you have been married for longer than 7 years.

Any documentation is better than no documentation when it comes to proving your separate property.

Valuing separate property 

If you are successful in proving your separate property claim, the value as of the date of marriage or date of receipt will be set aside for you by the court and not divided with your spouse. However, any appreciation in value during the marriage of that asset is subject to division as part of the marital estate.

For example, if you had a house worth $500,000 when you got married, and it’s now worth $900,000 as of the date of divorce, you have $400,000 in appreciation that is subject to division. In theory, you could be expected to pay your spouse an equitable share of the $400,000 in appreciation (estimated to be an equal share of $200,000), while you retain the remaining $700,000. Prenuptial agreements can help you protect you from sharing any appreciation on separate property with your spouse. If there is no appreciation in value of your proven separate property, then your spouse will not have a claim against it.

What can I do to protect myself now? 

If you already filed for divorce and you cannot prove your separate property, you can still make a “contribution” argument. Judges have the discretion to award property in a way they find fair and equitable, which could mean giving more property to one party. For example, this argument is often made when one party contributed their separate property funds to purchase a jointly titled marital home, and the home could not have been purchased without that separate property being used.

Contribution arguments are commonly made in Court but are not always successful due to the court’s discretion and other public policy considerations. However, it may be worth making the claim in court if you believe your situation justifies an unequal division of the marital estate.

Just because you didn’t sign a pre-nuptial agreement before you were married doesn’t mean you can’t contract your property rights later in your marriage. It is not uncommon for parties to enter into a post-nuptial agreement during their marriage, often when they receive inheritances or other large gifts. A post-nuptial agreement operates much like a pre-nuptial agreement, however, if it is drafted in contemplation of divorce, it will not be enforced.

Protecting your separate property in a divorce can be complicated but worth the effort. By working with an experienced attorney, you can ensure that you meet your burden and navigate the court system with confidence and peace of mind. 

This article is sponsored content.

Reading Terminal Market, PhiladelphiaEliza Steinberg is a Shareholder at Griffiths Law. Eliza Steinberg’s practice is focused exclusively on family law related matters including divorce, allocation of parental rights, post-decree disputes, and child support matters.






Reading Terminal Market, PhiladelphiaKellian Coggswell is an Associate Attorney at Griffiths Law.  Her practice is focused exclusively on family law related matters, including divorce, common law marriage, allocation of parental rights, post-decree disputes, and child support.

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