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how do I protect assets in home with second marriage

jds
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Post #1 of 2 (5312 views)

how do I protect assets in home with second marriage

I am planning on marrying in July. My fiance has no assets and is currently living with his elderly parents. I own a home but there is still an existing mortgage and home equity loan on it. We have discussed how to handle finances once married and he wants to assume payments for utilities, cable, phone...smaller bills....while I continue to pay the mortgage and second mortgage (my monthly contributions would be four times his with this arrangement). Our incomes are similar except for a pension which I am receiving from my ex which increases my income such that it is double his income. He is receiving some additional income from a military disability which he is not including into our income stream. He is also planning on an eventual nestegg from sale of his parent's home once they are deceased...this he has indicated he wants to pass on to his son. My home is located in New York. During my divorce from my first husband (in New York) the judge ruled that my inheritance was co-mingled with my then husband's when purchasing our home such that he ruled it was no longer separate property. Thus I am quite concerned about "co-mingling of incomes" and would like to know if it is possible to keep my home as totally separate equity with my new husband having no claims to any equity in it, both that pre-existing the marriage as well as any accrued within the marriage. Since he appears to want to keep both the disability income and income from his parent's home as separate property, he is well protected legally pending either divorce or my death. Since most of my assets involve the home I wish to protect it both for myself and my children. If I pay the mortgage and home equity loan solely from moneys acquired from my ex's monthly pension checks (which are separate property) could any equity acquired during the marriage in the house belong solely to me? If I pre-decease my husband, can I will the house and all it's contents to my children (the home is entirely furnished and he will be bringing only clothes and his car)? If I pre-decease him, could I have in my will that the home and it's contents goes IMMEDIATELY to my children or would they have to wait until he dies? I was told that a prenup only applies to divorce, not death, so that even if he agrees to this in a prenup, how is it enforceable if I predecease him? Sorry for so many questions. Thank you for any input.

Legal
GettingRemarried.com Legal Advisor

Post #2 of 2 (5247 views)

Re: [jds] how do I protect assets in home with second marriage [In reply to]

You include a lot of issues, in your question involving both estate issues as well as prenup issues. Having had an unpleasant experience with the NY courts during your divorce from your first husband you are well aware of the need to properly protect yourself and your assets (especially your home) from becoming comingled marital property. You will have to seek assistance from a qualified estate planning attorney as well as an attorney who could prepare an iron clad prenup agreement (this may well be the same attorney or 2 attorneys). Just some general advice; keep the house deed in your name only. Make all mortgage payments and be sure that your paper trail properly demonstrates that the payments have been made by your own separate income.

Acquire an attorney well before the marriage since these documents may take some time to prepare.
M. Giordano
Legal Advisor