How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.
Ask LegalGems Your Own Question
LegalGems
LegalGems, Lawyer
Category: Family Law
Satisfied Customers: 9701
Experience:  Experienced Family Law Attorney
63726236
Type Your Family Law Question Here...
LegalGems is online now
A new question is answered every 9 seconds

We are in our 50s now, my girl friend and I are getting married.

Customer Question

We are in our 50s now, my girl friend and I are getting married. When we were discussing how to handle our individual premarital assets(cash and real estates), we intended to keep our each individual premarital assets to each individual. We will combine our every penny we will make from the day we get married. This will be our 2nd marriages. Each of us had one divorce before. Do we need to sign any legal documents to specify that our premarital assets are not part of our marital assets? Thank you!
John
Submitted: 1 year ago.
Category: Family Law
Expert:  LegalGems replied 1 year ago.
Good Day! I'll do my best to assist you. Please remember: I only provide general information and a local attorney should always be consulted. A few more minutes as I continue looking into this and formulating a response. Thanks for your patience.
Expert:  LegalGems replied 1 year ago.
The court only has jurisdiction to divide marital property. Marital property is defined by the following statute:
(1) (A) “Marital property” means all real and personal property, both tangible and intangible, acquired by either or both spouses during the course of the marriage up to the date of the final divorce hearing and owned by either or both spouses as of the date of filing of a complaint for divorce, except in the case of fraudulent conveyance in anticipation of filing, and including any property to which a right was acquired up to the date of the final divorce hearing, and valued as of a date as near as reasonably possible to the final divorce hearing date. In the case of a complaint for legal separation, the court may make a final disposition of the marital property either at the time of entering an order of legal separation or at the time of entering a final divorce decree, if any. If the marital property is divided as part of the order of legal separation, any property acquired by a spouse thereafter is deemed separate property of that spouse. All marital property shall be valued as of a date as near as possible to the date of entry of the order finally dividing the marital property.
(B) “Marital property” includes income from, and any increase in value during the marriage of, property determined to be separate property in accordance with subdivision (b)(2) if each party substantially contributed to its preservation and appreciation, and the value of vested and unvested pension, vested and unvested stock option rights, retirement or other fringe benefit rights relating to employment that accrued during the period of the marriage.
(C) “Marital property” includes recovery in personal injury, workers' compensation, social security disability actions, and other similar actions for the following: wages lost during the marriage, reimbursement for medical bills incurred and paid with marital property, and property damage to marital property.
So property acquired prior to marriage is typically classified as separate property and is not divided during a divorce.
Statute here: http://law.justia.com/codes/tennessee/2010/title-36/chapter-4/36-4-121
For spousal support, the court can consider one's separate property in awarding spousal support per 36-4-121 :
(a) In any action for divorce, legal separation or separate maintenance, the court may award alimony to be paid by one spouse to or for the benefit of the other, or out of either spouse’s property, according to the nature of the case and the circumstances of the parties. The court may fix some definite amount or amounts to be paid in monthly, semimonthly or weekly installments, or otherwise, as the circumstances may warrant. Such award, if not paid, may be enforced by any appropriate process of the court having jurisdiction including levy of execution. Further, the order or decree shall remain in the court’s jurisdiction and control, and, upon application of either party, the court may award an increase or decrease or other modification of the award based upon a showing of a substantial and material change of circumstances; provided, that the award is subject to modification by the court based on the type of alimony awarded, the terms of the court’s decree or the terms of the parties’ agreement.
So in order to avoid the consideration of separate property in a divorce for spousal support purposes, a prenuptial would need to be executed.
Information on prenups here: http://www.tba.org/journal/divorce-planning-in-tennessee-pre-nuptial-post-nuptial-agreements-and-trusts
and here: http://www.freelegalaid.com/nav/tennessee/prenuptual-and-postnuptual/article/prenuptial-agreements-tennessee
Customer: replied 1 year ago.
Your reply didn't answer to my question directly. My question is if we need to sign any documents or paper to separate our premarital assets from our marital assets before we get married. We live in Missouri.
Expert:  LegalGems replied 1 year ago.
No, there is no need to sign a document to separate the property, unless one wishes to sign a prenuptial agreement, which identifies the party's separate property, and states how it is to be handled in the event of divorce.
If one does not wish to do a prenup, and only lists and signs separate property, the court will likely not take that into consideration because it appears to be attempting to do the same thing as a prenup, without following all the requirements of a prenup. If one does do such a list, the court may allow it into evidence to determine the character of property, but it will not be absolute proof as the other party can argue that the property was "transmuted" - or changed ownership, by gift, by marital contributions (earnings during marriage) etc.
Please let me know if you have any questions on the above.
Expert:  LegalGems replied 1 year ago.
Here is a link to help locate an attorney:www.findlegalhelp.org and http://apps.americanbar.org/legalservices/findlegalhelp/home.cfmOf course, should you have other questions please do not hesitate to post here.If you found the information I provided useful, kindly rate positive as that is the only way the site is allowed to credit me so that I am compensated for the time I spent- which does not result in additional charges to the customer.Thank you for extending this courtesy as I am an individual contributor so ratings are quite important , and take care!

Related Family Law Questions