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Family Lawyers Las Cruces NM | Blog

Protecting Your Assets During Divorce: Tips from an Experienced Divorce Attorney

Posted by Sarah Van Cott Hughes | Oct 27, 2023

Divorce is the legal dissolution of a marriage. It is a challenging and often stressful process that can significantly affect your financial future. Protecting your assets during divorce ensures a fair and equitable property division. Emotions can run high during a divorce, and it is easy to overlook important considerations. Seeking the guidance of experienced attorneys can help you navigate the complexities of asset protection during this difficult time.


Common Mistakes to Avoid

Many individuals make common mistakes during divorce that can impact the case outcome. One of the most critical errors is failing to secure the services of an experienced attorney. An experienced attorney specializes in family law and can act as a strong advocate for your rights, helping you navigate the complex legal landscape of divorce and ensuring that you protect your assets throughout the process.

Furthermore, another mistake is the omission of a comprehensive assessment and disclosure of all assets. Full disclosure is a fundamental requirement in divorce cases. More accurate or complete disclosure can reveal hidden assets, potentially resulting in an uneven property division. Providing a comprehensive inventory of all marital assets is crucial to prevent oversights and ensure an equitable distribution.

Another significant pitfall is hastily agreeing to settlements that may prove unfair to your long-term financial well-being. It is imperative to have a precise understanding of your rights and legal entitlements. It often involves seeking consultation with financial professionals and attorneys to help you negotiate and achieve a fair settlement reflecting your financial contributions and future financial stability.


Understanding Marital vs. Non-Marital Assets

Marital and non-marital assets play a pivotal role in the equitable property division during divorce proceedings. Marital assets encompass properties and wealth acquired during the marriage, representing a broad spectrum of resources accumulated throughout the union. It's imperative to recognize that these marital assets are typically eligible for division between the divorcing spouses, and having a comprehensive understanding of this is fundamental to safeguarding your financial interests.

In contrast, non-marital assets consist of properties acquired before the marriage and assets received through inheritance or gifts during the marriage. Non-marital assets often include personal investments, estates, or items gifted explicitly to one spouse, and they are generally considered separate from marital assets. The clear distinction between these two types of assets is paramount in ensuring a fair property division during divorce proceedings. Proper identification, meticulous documentation, and the ability to demonstrate the non-marital nature of certain assets are essential to protect them from being subjected to division.


Preparation for Divorce

Adequate preparation for divorce encompasses a multifaceted approach, with gathering financial documents as a pivotal initial step in the comprehensive asset protection process. 

These documents span the breadth of your financial landscape and encompass a diverse array of records, including but not limited to bank statements, tax returns, investment portfolios, real estate documentation, and any other pertinent financial information that can cast light upon the scope of your assets. The meticulous documentation of your assets' value carries equal significance, which may entail engaging in professional appraisals, valuations conducted by experts specializing in asset evaluation, or obtaining expert opinions. Accurate asset valuation is paramount and the keystone for achieving an equitable property division, ensuring that both you and your spouse receive a just share of the marital assets based on their actual worth.

Establishing individual bank accounts also assumes pivotal importance when seeking to safeguard your financial interests during divorce proceedings. Creating separate accounts is a prudent measure that goes a long way in maintaining financial independence and preventing any commingling of assets with your spouse. By isolating your funds in separate accounts, you protect your financial autonomy and prevent potential disputes arising from shared finances, enhancing the clarity and transparency of financial matters in the divorce process.


Strategies for Asset Protection

Implementing robust strategies for asset protection during the divorce process is essential for safeguarding your financial interests and minimizing potential disputes. Prenuptial and postnuptial agreements represent two powerful tools in this endeavor, as they offer a structured framework for asset division in the unfortunate event of divorce. These legal agreements establish clear guidelines defining which assets are considered marital and separate. They can go a long way in reducing conflicts and uncertainties during divorce proceedings, providing assurance for both spouses and safeguarding assets from contentious division.

Transferring assets into trusts is another effective strategy to shield them from division during divorce proceedings. Placing assets in trusts can create a protective barrier around them, potentially rendering them immune from being categorized as marital property. This strategy can significantly bolster the protection of your assets, offering peace of mind and security as you navigate the complexities of divorce.

Collaborating with financial experts, such as forensic accountants, can be instrumental in ensuring a fair and transparent division of property. These professionals possess the specialized knowledge and skills necessary to uncover hidden assets and detect any attempts to conceal financial resources. Their expertise is invaluable in identifying discrepancies and anomalies in financial records, thus preventing any unjust manipulation of asset disclosure.

Establishing separate property agreements can be highly beneficial in scenarios where there are substantial disparities in assets between spouses. These agreements explicitly delineate the separation of ownership of specific assets, shielding them from division during divorce proceedings. By setting clear boundaries, these agreements provide a robust mechanism for safeguarding individual assets, ensuring a more equitable division, and protecting financial well-being.


Negotiating Property Division

Property division during divorce is a pivotal aspect of the dissolution process, and the principle of equitable distribution will often govern it. Equitable distribution doesn't automatically entail an equal 50/50 split of assets and liabilities; instead, it considers many factors to ensure a fair and just division that reflects the unique circumstances of each divorce case. These factors play a pivotal role in shaping the outcome of property division, and having a comprehensive grasp of your rights and the specific dynamics at play is essential for successful negotiation.

The duration of the marriage is one of the foremost considerations. A lengthy marriage may lead to a more complex intertwining of assets and shared investments. In contrast, a shorter marriage may result in a more straightforward division. Each spouse's contributions to the marital assets carry substantial weight. Contributions can encompass financial support, homemaking responsibilities, or other forms of involvement in managing and accumulating shared property.

Additionally, the earning capacity of each spouse is an influential factor, which means assessing the income potential, skills, and employability of each party post-divorce is imperative. For example, if one spouse has significantly lower employability or limited skills, providing them with more substantial support might be necessary.

The couple's living standard during the marriage is another factor that impacts property division. Courts aim to ensure both spouses can sustain a lifestyle similar to that during the marriage, to the extent possible, post-divorce.


Protecting Personal and Retirement Assets

During divorce, it is crucial to secure personal belongings and sentimental items. These items often carry profound sentimental value, and ensuring that they are neither lost nor damaged during the divorce process is paramount. Emotions can run high during this period, and disputes over personal possessions can further exacerbate tensions. Individuals should consider creating a comprehensive inventory of personal items, ideally with photographic documentation, to ensure that both parties agree on their division.

Dividing retirement accounts and pensions can be complex and require careful consideration. Consulting with financial advisors and experts with expertise in retirement asset division can be invaluable in navigating the intricacies of splitting these assets. Professionals can guide you through the available options for safeguarding your retirement savings. One standard method for dividing retirement assets is through a qualified domestic relations order (QDRO), a legal document that outlines how divorcing parties will allocate retirement assets. Additionally, exploring alternative approaches for retirement asset division, such as offsetting other assets or reaching a mutually agreeable arrangement, can further contribute to protecting your long-term financial security. By seeking professional guidance and exploring these options, you can make informed decisions that secure your retirement funds while minimizing unnecessary stress and conflict during divorce.


Post-Divorce Asset Management

After a divorce, you must revise estate planning documents to reflect your new circumstances. Updating your will, trusts, and other estate planning instruments can ensure the proper distribution of your assets according to your wishes. This step is critical to avoid unintended outcomes or disputes regarding asset distribution. By reviewing and revising your estate planning documents, you can establish a clear and legally binding framework for the distribution of your assets, protecting your interests and your loved ones' well-being.

Another crucial aspect of post-divorce financial management is updating beneficiary designations on insurance policies, retirement accounts, and other financial accounts. Please update these designations to avoid unintended consequences and potential disputes. The wrong beneficiaries may receive your assets, which can conflict with your revised estate plan. Seeking professional financial advice to manage your assets post-divorce is highly recommended. 

A financial advisor can assist you in creating a comprehensive financial plan that aligns with your new circumstances and goals. They can guide you in building and protecting your wealth, ensuring your financial security and that of your dependents. Whether it's updating beneficiary designations, creating investment strategies, or planning for retirement, a financial advisor can provide you with the expertise and insight needed to make sound financial decisions during this transitional period.



Divorce can be a challenging and emotionally draining process. By understanding the importance of protecting your assets and implementing the strategies outlined in this blog post, you can safeguard your financial interests and secure your future. Remember to consult with experienced attorneys specializing in divorce and asset protection to ensure you receive the guidance and support necessary to navigate the complexities of the divorce process. 

Divorce may be difficult, but with the proper knowledge and professional assistance, you can emerge from the process with your assets protected and a solid foundation for your financial future.

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About the Author

Sarah Van Cott Hughes

Bio Sarah Van Cott began practicing law in Alamogordo, NM, at a small civil practice where she managed cases including wills and trusts, personal injury, landlord tenant and contract law. In 2013, she began working as an Assistant District Attorney prosecuting criminal cases for the State of Ne...

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