Think back briefly to the beginning of your marriage. In preparing for a property settlement, reflect upon how property ownership issues affected you even before your wedding.
Management of Finances
Did you and your spouse consistently deal with your finances and property in a particular way? Did you combine all of your earnings and then pay bills, or was there a mutual agreement as to who paid certain bills? Was it understood that certain investments were personal to one spouse?
Some spouses do not have much experience in handling finances. In counseling many church couples on financial matters, I found that joint checking accounts and the use of one checkbook by both spouses were often arguments waiting to happen. Inevitably, one spouse would have the checkbook when the other needed it. The other spouse would write a check and forget to record it in the register, so the account would be overdrawn. This can be trouble enough during a marriage, but add the complications of divorce, and it becomes quite difficult to trace funds.
Other spouses use independent checking accounts. In this way, if one spouse is negligent in handling money, it does not put the family finances in jeopardy. Records that indicate who paid for certain expenses are very useful when both parties can account for personal and marital funds.
Title to Property
How is your real and personal property titled? Who held the title at the time you married? Was the title changed during your marriage?
There are many reasons spouses change title ownership to major real and personal property investments. Aside from the obvious desire to show solidarity among mates, there can be significant tax and personal liability considerations in having the title owned by one or both spouses.
Titles to automobiles and boats should seldom be in the name of both spouses for liability reasons. Any entry of a judgment against both spouses subjects any jointly held property to confiscation (if the property is not otherwise exempt by law, such as a family homestead). Title to these assets is persuasive in deciding what the parties receive in a property settlement. But many spouses believe that liability issues are a higher priority. They put different assets into individual names and view each asset as separately owned property.
A premarital agreement between spouses outlines how property is to be divided, spouse support, and other matters in the event of any future divorce. When spouses are not equal financially, such agreements can protect the wealthier spouse from any exploitation.
There are obviously several drawbacks to using a premarital agreement. To a young couple in love, the entire issue can communicate "I don't trust you." The underlying message is that you are planning for a marriage that may not last "until death do we part." For Christians, premarital agreements can send an even stronger negative message. Christians can and should view their marriage as lasting for life. If an agreement can be sensitively discussed by a couple before marriage, it is useful if needed or conveniently forgotten if not. However, if the agreement only fosters bitterness and emotional turmoil just before a marriage, it is probably best to forget it.
Perceived mistrust can also become a self-fulfilling prophecy. If a spouse perceives mistrust, he or she may act accordingly. To spouses who are business-oriented, an agreement may be good. Although not pleasant to think about, planning is prudent -- like making a will or buying life insurance. For inexperienced mates, though, it can be emotionally devastating.
But guidelines in premarital agreements can resolve issues in advance -- before emotions are running high and property division is a hotly contested issue. Think about it. Why not decide these matters at the start of a marriage when each party is lovingly cooperative? Partners begin with a partnership agreement. If spouses resolved property matters in advance, divorces would be over in a short time. Many believe it is desirable for a couple to discuss these matters early in a serious dating relationship. This is especially true in states where the laws are not fair to both spouses.
If you are facing a divorce now, find out if any existing premarital (or antenuptial) agreement governs your property rights. Did you ever sign such an agreement? If so, have your attorney review it immediately and advise you as to your rights and responsibilities. If it is not fair and reasonable to you, the courts may be able to intervene and provide you with relief.
Joseph Warren Kniskern is an attorney in Raleigh, North Carolina with more than 32 years of experience, who has been cited inWho's Who in American Law. This article has been excerpted with permission from When the Vow Breaks: A Survival and Recovery Guide for Christians Facing Divorce (B&H Publishing Group, revised edition copyright @ 2008).