We have blogged frequently regarding prenuptial agreements. There is also an advice piece on our firm’s web site entitled "Considering a Prenuptial Agreement – Should My Children Have One?"
Whether an asset is exempt is a common issue that arises in divorce case. The general rule is that an asset acquired prior to the marriage which is not commingled is exempt from equitable distribution. In addition, an asset that is received via inheritance and/or third party gift is also exempt as long as it is not commingled. Commingling is essentially putting an asset into joint names or depositing it into a joint account. Changing something from someones own name into joint names is deemed as making a gift to the marriage.
Also, the law is clear that the person who seeks to have an asset deemed exempt has the burden of proving that the asset is exempt.
Because an engagement ring is a premarital gift, albeit a conditional gift, from one spouse to to the other, it is exempt from equitable distribution. If the ring is replaced and/or enhanced during the marriage, while the original stone, if it exists, remains exempt, the new ring is not exempt. In fact, any gifts between spouses during the marriage are not exempt and are subject to equitable distribution on divorce. As such, some times we are required to have jewelry, furs, and other expensive presents appraised to determine their value for equitable distribution purposes. Sometimes this task is made a little easier because parties have appraisals for insurance purposes which is why we often ask for the homeowners insurance policy riders.
The premarital portion of retirement assets, i.e. IRAs, 401ks, pensions, are typically exempt. For defined contributions plans (ie. the accounts with cash balances), the trouble may be finding or obtaining the documents to establish the premarital values. That said, even though the premarital values are often commingled with contributions made during the marriage, the premarital portions are typically exempt. Contrast that with a regular premarital bank account where deposits are made during the marriage using marital income. Many would argue that this account has lost it’s exempt status. Is that fair? What is the real difference? Perhaps the difference is that though money will usually go in and out of a bank account, there usually is not the same type of two way activity as to retirement accounts.…