How to protect your money from divorce

Divorce is to be avoided at all costs, as the lawyer fees, asset split and ongoing maintenance can be crushing.

Research commissioned by law firm Slater and Gordon has found that the start of the year is one of the most popular times for wives — who are more likely to instigate a divorce — to book an appointment with a family lawyer.

Whichever partner looks after the children can expect to take up to 80 per cent of everything, so the best advice for the other side is to never, ever let it get to that stage.

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“If you can at all avoid it, don’t get divorced. It is a very quick way to erode your wealth and health,” says Sydney-based financial adviser Peter Horsfield.

But wisdom tells us to prepare for the worst, so here are some sound ways to protect your money from a relationship breakdown.

Sign a prenup

Mr and Mrs Smith

A wealthy Mrs Smith can arm herself with a prenup, lawyers advise.

At any stage of a marriage or de facto relationship – before, during or after a split – you can agree in writing with your partner how to divvy up the assets if the relationship ends.

Etienne Lawyers business law specialist Steven Brown says one of these written agreements is “virtually essential” if you are wealthier than your partner, have adult children from a previous relationship, or are expecting a “significant” inheritance.

To protect against a legal challenge, the agreement must be drafted by a lawyer and there must be no evidence that you forced or deceived your spouse into signing it.

Courts are very willing to tear up these agreements for a variety of reasons, including fraud or a change in circumstances related to the care of young children.

But Family Law specialist Dianne Simpson, a partner at DDCS Lawyers in Canberra, says putting an agreement in place can act as “a shield” against your spouse applying to the Court for a better deal.

“Sometimes the existence of the BFA is a sufficient barrier in itself, in that not everyone has the resources, financial and emotional, to take on a court fight of this nature,” Ms Simpson says.

If the agreement is properly drafted and complies with the law, it won’t even matter that it ‘unfairly’ favours you, she says.

Don’t try to hoodwink the Court

You could try to secretly stash money in complex company structures, trust funds and superannuation accounts, by giving or loaning it to family members, or even by selling all of your earthly possessions to your best friend for $1, but the Court will be neither amused nor duped.

Financial adviser Peter Horsfield says your chances are “zero to nil” of protecting your money from a jilted spouse using these methods.

“Putting money in trusts or superannuation or companies – the family law court is just going to go through that like a hot knife through butter and split it up as they deem fit,” Mr Horsfield says.

“You’re not going to beat the Court.”

Lawyer Dianne Simpson holds out a little more hope of some of these options working, especially the use of trust funds, but agrees that the Family Law Court has “very broad powers” to peer through the “facade” of complex arrangements to see who is really holding the purse strings.

Protect your child’s inheritance

War of the Roses film

Avoid a War of the Roses-style divorce squabble by being prepared.

A legitimate way to protect your money from divorce is to protect it from your child’s divorce.

That is, you can ensure that your money goes only to your children after your death, and is not taken by their partners.

A trust fund is the best way to do this, says Mr Horsfield.

Money can sit in this fund after your death, accessible only by your son or daughter, and slowly disbursed over many years rather than paid out in a lump sum. This way, the inheritance is insulated somewhat in the event that your grown-up child finds a new partner.

“You can put stipulations in there to rule from beyond the grave. It’s just another way to protect your wealth from other parties,” Mr Horsfield says.

Ms Simpson, the family law expert, says this method is not foolproof, as even a regular income from a trust fund can have “some impact” on your son or daughter’s divorce settlement.

But at least the inheritance will stay in the trust fund, accruing interest, rather than split down the middle with your child’s ex.

Update your Will

Writing a new Will, especially after you remarry, is also crucial.

Otherwise, your former husband or wife could wind up with most of your money after your death, simply because you forgot to put your new relationship on paper.

“There have been countless cases of ex-partners contesting Wills and leaving the new partner with little or a hefty legal defence bill,” says Mr Horsfield.

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