I recently met with a friend/colleague for dinner. We had a lot to talk about and catching up to do, so of course the conversation eventually turned to our kids. She related a story about a discussion she had with her daughter, which I found very interesting from a family law professional AND parental perspective. I asked her to write about it so I could post it here. She graciously agreed to do so. Please read her account of the sensitive conversation she and her daughter had concerning protecting her daughter’s separate property assets.
Recently I initiated a sensitive conversation with my unmarried 23-year-old daughter. We were discussing my estate plan and I explained how my assets would be handled when I die. Obviously the discussion included the topic of her inheritance of real property, life insurance proceeds and investment accounts. I planned this as the perfect segue into the concept of separate and community property and how Family Court rules apply to gifts and inheritances. Please note that my daughter is not planning on getting married anytime soon; my intent was to provide general information, not to protect her from a specific suitor.
On one hand, as a professional in the divorce arena, it seemed perfectly logical to define separate and community property and explain the Family Court rules. On the other hand, as a parent, it felt like I was preparing her for her future divorce.
So the conversation began.
I approached the subject gingerly, explaining that I felt it was important for her to understand the concept of separate property in the eyes of the Family Court, driving home the point that this was information she may never need to use but would find helpful if she ever did.
I suggested she take a snapshot (literally and figuratively) of all account statements pertaining to her real property and financial accounts as of the date of any future marriage. I warned her against disposing of any escrow documents related to the purchase of separate real property before the marriage and community real property during the marriage. I explained the process of tracing and the future burden she may be under if she were forced to prove that her separate property contributed to the purchase of community property. I suggested setting up an electronic file where she updated her account statements annually and to maintain separate property accounts as true separate property if she so desired, in other words, preparing her defense of future separate property claims.
She listened intently, asked intelligent questions and seemed unfazed by the conversation. I was the one who grappled with what it means to discuss strategy with your child for purposes of retaining as much of their property as possible in the event of a divorce. Of course no one wants their child to divorce, but realistically there is a strong possibility it will happen.
So what do we tell our kids who are about enter into a marriage? “Make a list of your stuff now because you may need to prove it when you get a divorce”?
Do we say, “Hey, the down payment for your marital residence came from your inheritance from Aunt Daisy. You can get that cash back if you get a divorce. Hang on to the escrow documents”?
Is it jaded to suggest that your son or daughter meet with a family law attorney prior to marriage to discuss their rights to reimbursement? Is this setting them up for a doomed marriage?
Working for years in divorce, I have seen far too many people who enter into divorce proceedings with no back-up to their separate property claims. And if push comes to shove, which it all too often does in a contentious divorce, they cannot prove their separate property interest in the family home or business. How tragic to lose a home or business because records of how the property was obtained were not kept. Taking some very simple precautions at the start of a marriage can prevent unnecessary battles later on in the event of divorce.
The conversation I had with my daughter was brief. She said she appreciated the information and would consider having the same discussion with the person she would someday marry. In retrospect, I believe this is really the most honest way to approach this subject; have the conversation with the future spouse before the wedding date. How that person reacts and engages in the conversation will speak volumes about their future as a couple. No surprises, no covert activity -- just a frank inventory of what each party is bringing to the marital table. If more couples could survive that conversation and still move on to marriage, I have a feeling there would be fewer divorces.
I appreciate my friend’s perspective. What do you think about this subject? Have you had the same conversation with your child, or wish you had it but now it’s too late? Or is it too cynical a concept to even bring up? Does it sully the idea of romantic love? Please send me your thoughts or comments at email@example.com.