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Prenuptial and postnuptial agreements are often key in properly protecting the interests of marrying couples. While some spouses may not appreciate the idea of a prenuptial or postnuptial agreement, it's something most have to learn to accept or the other spouse will often need to do without some degree of protection in the marital relationship.
In some situations, a spouse may place assets in a trust to protect those assets. Trusts can also affect taxes and liability. However, a revocable trust may not provide any protection in a divorce, while an irrevocable trust may. An irrevocable trust may limit a spouse's access and ability to control his assets, potentially complicating the matter further. That said, your attorney may be able to assist you with setting up a trust and structuring your business to maximize your protections but, ultimately, as you can see, there are positives and negatives to that approach. Transmutation agreements can also be used to separate community assets.In any case, it's worth noting that property brought into a marriage is typically separate property belonging to the spouse who brought it in. However, problems arise when the property is commingled. Therefore, it's important to have your attorney review and evaluate your assets so that your attorney can advise you as to how you might best keep that property separate, avoid commingling it, and otherwise protect your assets.
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It's important to remember that a business that an individual owns is an asset belonging to that individual. While a business brought into a marriage is separate property, the increased value of the business may constitute marital property subject to distribution in divorce. This is because earnings and assets acquired during a marriage are typically marital property subject to distribution in a divorce. Accordingly, in this way, a spouse can claim a portion of another spouse's business.Again, there are other ways to protect assets (like a trust, for example) without a prenup, but such actions also have costs and benefits and their application really depends heavily on the detailed circumstances of the parties involved. However, it's also worth noting that a spouse may not be properly protected without (or even with) a prenup. Protecting assets can be a complicated matter and you're going to want to sit down with your attorney for a thorough evaluation of your circumstances so that you can weigh the costs and benefits of various activities. Ultimately, your attorney may urge you to seek a prenup, though you may discover other methods of protecting your assets with which you may be more satisfied. Alternatively, you may wish to use multiple methods of protecting your assets after consulting your attorney.
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