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Thomas Swartz
Thomas Swartz, Attorney
Category: Legal
Satisfied Customers: 3006
Experience:  Twenty one years experience as a lawyer in New York and New Jersey. Former Appellate Law Clerk.
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I am married and we are buying a house. My parents want to

Customer Question

I am married and we are buying a house. My parents want to help us with a gift for a down payment on our house, probably in the area of $35,000 (10%). If my husband and I get divorced down the road and we split everything 50/50, is there any way to protect that $35,000 from him?
Submitted: 5 months ago.
Category: Legal
Expert:  Thomas Swartz replied 5 months ago.
Hello JACUSTOMER,A way to handle this would be to have your parents execute a simple document indicating that they are making a gift to you personally the sum of $35,000, and that this is not a gift given to your husband, or to the marriage itself. The gift document should indicate that the gift is not to be considered marital property. It would be a good idea to have this document made in affidavit form and have it sworn before a notary republic.If you are taking out a mortgage for the house, your lender may actually require you to execute a document indicating that the $35,000 is in fact a gift and not a loan requiring repayment. In addition, you should execute a simple prenuptial agreement clearly stating your husband acknowledges that the $35,000 was given to you personally, it is not considered marital property, and that he has no claim to the $35,000. This prenuptial agreement should make clear reference to the gift document executed by your parents, and you would physically attach a copy of the gift document to the prenuptial agreement. For example you would say something like see "Exhibit A" attached to this prenuptial agreement, and you would label the gift document "Exhibit A" The prenuptial agreement should also contain some language to the effect that in the event of divorce, you husband will receive $35,000 less than he otherwise would receive when the assets are distributed. Again, the prenuptial agreement should be sworn to before a notary republic.Of course it is always a good idea to have a local matrimonial attorney draft these documents for you.I hope this helps.Thomas

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