How to preserve resources while trying to solidify a shaky marriage

Question

My wife and I have been married for a few years and have a prenup which essentially states that all inherited property and previously declared property is "personal" and "community property" is defined as whatever we buy with our incomes (including a home, 401k, etc) as long as this is not paid for with inherited or gifted money from family.

We are not entirely sure how our marriage will play out, but until we get on a good steady path, I don't want to buy a home because I don't want to grant tens of thousands of dollars in "community property" to someone who may not stay married to me or may be too different to stay married to.

My lawyer mentioned a "quit-claim deed" can help flag a home purchase as separate property if we both sign it (comments about this are welcome), but I am also curious about how to manage personal resources in other ways before committing to buy a house. Instead of saving cash for a down payment on a house, can I save cash and either "gamble" with it or give it as gifts to my family? Then once it is time to buy, have my family bequeath the money to me when I'm ready, so this money (or gold/silver, etc) is then considered personal property?

My folks still have a few decades left in them, so I'd like to have some way to safely proceed deeper into this marriage without giving up too much capital, at least until we can work things out. We want to keep the marriage together for our child, but I don't want to end up losing too hard if this ends up not working out. Thanks.

Answer 1

If you buy a house and your wife signs a quitclaim deed to you, that transfers to you whatever rights she has in the house.

Similarly, if you and your wife sign an agreement that anything deposited in a particular bank account in your name would be your separate property, that would override the pre-nup as far as that account was concerned. Such an agreement could include a dollar limit per month or per year, or an explicit purpose, such as savings for a down payment. (It could be thought of as a gift to you of her share of any funds deposited.)

Giving property to your parents or others with the understanding that it will be returned on your request might be seen as an attempt to evade the pre-nup, and a court might hold that the property was actually shared, if you ever do divorce. There might also be gift tax issues if the value is high enough.

Whether asking your wife to agree to a quitclaim or any sort of agreement to modify the pre-nup would help or harm your marriage I cannot know, nor did you ask that. But I would think that for most people being open would work better than going behind a spouse's back.

None of this should be taken as legal advice. I am not a lawyer.

Answer 2

You're describing a money-laudering scheme (usually called asset-hiding). If you earn $5,000 more than you need for basic survival, that is still community property, and hiding assets by signing it over to a relative with the intent of protecting it from a spouse is against the law -- it doesn't make it not community property. When your scheme is discovered during the divorce, there may be penalties imposed on you.

Yes, you can give a gift of $5,000 to a relative and spousal consent is not required, but you are not describing gifting.