As authors of books on wealth protection for physicians since the 1990s, we have been asked hundreds of times by doctors about protecting assets in a divorce. This shouldn't come as a surprise, as more than 50 percent of all marriages in this country end in divorce—and that percentage grows to almost 75 percent for second marriages. Doctors are not immune from this trend—in fact, the numbers for doctors may be even worse. Thousands of physicians each year are frustrated with the financial consequences of their marital dissolution. They may not receive what they believe they deserve or lose personal assets intended for children, or family assets intended to remain within the family, such as family businesses. While loss of assets to a soon-to-be-ex can not be avoided, some of the financial pain can be minimized—with proper planning.
EXAMPLES OF “DISASTER DIVORCES”
The following are examples to help you consider whether you and your family are adequately prepared for divorce.
A couple marries, each for the second time, and each with adult children. Without any pre- or post-marital agreement, they title many of the wife's previously separate income-producing properties (such as her rental apartment units) into the name of the new husband in order to save income taxes. Within two years of the marriage, they divorce. The husband gets half the rental units (in addition to alimony and other property), even though both spouses understood that the wife intended them to go to her children. The court simply ignored their understanding, giving half the properties to each spouse. 2. A couple marries, each for the first time. Over the next 20 years, the husband acquires more ownership in his family's bakery business. His father, the founder, gradually transferred shares to him. At 42, he is the majority owner. He and his wife then undergo a bitter divorce with the exwife granted half the husband's bakery business as community property. She then forces (1) high dividends and (2) a sale of the company to a competitor. 3. A resident gets married. She and her husband discuss her medical education and agree that she should not have to later compensate him for his greater financial contribution in their early years. However, they file for divorce eight years later. The husband considers the wife's professional degree as marital property, so he claims a share in her earning potential. The court agrees, even though the couple verbally agreed to the contrary.
USING A PRE-MARITAL AGREEMENT
A premarital agreement is the foundation of any protection against a divorce. The premarital agreement is a written contract between the intended spouses. It specifies the division of property and income upon divorce, including disposition to specific personal property, such as family heirlooms. It also states the responsibilities of each party and their children after divorce. Finally, these agreements lay out responsibilities during marriage, such as what each spouse can expect in financial support or which religion will be used to raise future children. The agreement cannot limit child support.
Each state differs on what is required for an enforceable premarital agreement. Check with local counsel if you investigate the rules relevant for you. Some general concepts:
1. The agreement must be in writing and signed
Every state requires that a premarital agreement be written and signed. Many also require that it be notarized or witnessed.
2. There must be a reasonable disclosure There must be a fair, accurate, and reasonable disclosure of each party's financial condition.
3. Each party must be advised by a separate attorney Many states either require separate legal advice explicitly or use it as a factor in determining whether or not the agreement was fair.
4. The agreement must be unconscionable Courts will not enforce a one-sided agreement. Also, the contract must not be structured to encourage divorce. For example, by stating that one spouse has no rights to property except upon divorce.
5. The couple must follow the agreement during the marriage
Courts disregard premarital agreements when the spouses blatantly disregarded it during their marriage, such as when property designated as the husband's separate property is re-titled to the wife.
PROTECTING ASSETS WHEN MARRIED
Generally, there is not much one can do to shield assets if they are not already protected through a pre-nuptial agreement as above. However, all is not lost. When implemented in a transaction with real economic substance (such as benefit, tax, or estate planning), certain planning techniques may have a secondary benefit of lowering the value of an asset for marital dissolution purposes. This valuation benefit can be significant when the court eventually splits assets. We have seen this work quite successfully for physicians when investing in certain types of benefit plans through the practice, non-traded REITs and other temporarily-illiquid investments, specific types of cash value life insurance and annuities.
EXAMPLE OF SHIELDING WEALTH
Stan is a dermatologist who was in a rocky marriage. Stan implemented a non-qualified benefit plan at his practice and funded it over a number of years. While enjoying the income tax and asset protection benefits of the plan, he also chose an investment option that kept the plan value low for five years, after which it would quickly accelerate in value. When Stan ended up getting divorced three years later, this plan was valued in the divorce much less than it would have been if he had not used the plan design. Stan kept about $200,000 of value outside of the divorce decree because of this one tactic.
PLANNING IS KEY
Whether you are considering planning before you get married or after marriage no one tactic or approach works well for all clients. It is crucial that you consult with advisors not only well versed in family law, but also asset protection—which is much more difficult to find.
For a free copy of For Doctors Only: A Guide to Working Less & Building More, call (877) 656-4362. For a free, shorter Kindle, iBooks or Nook ebook version of For Doctors Only, please download our “highlights” edition at www.fordoctorsonlyhighlights.com.
Disclosure: OJM Group, LLC. (“OJM”) is an SEC registered investment adviser with its principal place of business in the State of Ohio. OJM and its representatives are in compliance with the current notice filing and registration requirements imposed upon registered investment advisers by those states in which OJM maintains clients. OJM may only transact business in those states in which it is registered, or qualifies for an exemption or exclusion from registration requirements. For information pertaining to the registration status of OJM, please contact OJM or refer to the Investment Adviser Public Disclosure web site (www.adviserinfo.sec.gov).
For additional information about OJM, including fees and services, send for our disclosure brochure as set forth on Form ADV using the contact information herein. Please read the disclosure statement carefully before you invest or send money.
This article contains general information that is not suitable for everyone. The information contained herein should not be construed as personalized legal or tax advice. There is no guarantee that the views and opinions expressed in this article will be appropriate for your particular circumstances. Tax law changes frequently, accordingly information presented herein is subject to change without notice. You should seek professional tax and legal advice before implementing any strategy discussed herein.
David B. Mandell, JD, MBA, is an attorney and author of five national books for doctors, including FOR DOCTORS Only: A Guide to Working Less & Building More, as well a number of state books. He is a principal of the financial consulting firm OJM Group (www. ojmgroup.com) along with Jason M. O'Dell, MS, CWM, who is also a principal and author. They can be reached at 877-656-4362 or email@example.com