Never confuse secrecy or concealing assets with asset protection. Financial privacy can be helpful, but once you’re sued you can no longer rely upon secrecy because a judgment creditor can compel you to disclose your assets. If you truthfully disclose your assets, you lose secrecy. If you conceal your assets, you commit perjury. That’s not legitimate protection. You want a plan that lets you fully disclose your assets, confident that they’ll remain safe from your creditor. A judgment creditor can force financial information disclosure through deposition, interrogatories, requests to produce documents or subpoena your records and information from third parties.

Judgment creditors can and do find debtors’ assets. Loan and credit applications, bank records, tax returns, court cases (such as prior divorce that discloses assets) and insurance policies all provide clues. The paper trail is revealing. Computers expose our financial lives. Judgment creditors and prospective litigants often use professional asset search firms to find concealed assets. These firms can financially profile you with stunning accuracy. Forensic accounting firms trace deviously and secretively deployed wealth. So avoid “hide the assets” games. Your creditor will probably find your assets.

The sounder policy? Tell your claimant early in the game exactly what assets you own and how they are titled. Most importantly, explain precisely why they are beyond creditor reach. Make asset protection your selling tool. Convince a claimant that you’re simply not worth suing.

The cold hard reality of litigation, from an attorney’s perspective at least, is that it’s almost always all about money. Attorneys work for a living. They have bills to pay like everyone else. Although they often represent clients on a contingency fee basis, they’ll normally do so only if they believe they’ll get paid. If a potential defendant has no exposed assets, the attorney won’t get paid. Most plaintiffs’ attorneys first do an asset search on a potential defendant before taking on a contingent fee case. If their search reveals few unprotected assets, the attorney is then uncertain whether he will get paid for his efforts. Even if the asset protection plan is pierced, the process may be lengthy, expensive, and uphill. The attorney will then insist on an up-front retainer before accepting the case. This shifts the risk of suing a defendant and losing (or being unable to collect) to the plaintiff, who now realizes their lawsuit can be an expensive, risky undertaking!

Other than lawsuits with the potential for large judgments against wealthy (albeit asset protected) individuals, attorneys and would-be plaintiffs usually opt for easier prey. This is basic human (and even animal) nature. A pack of predators stalking a herd go for the easiest kill.

With that said, people who think they are well-protected may not be. The predator/litigant determines that an apparent defense is only smoke and mirrors. The defendant is surprised to lose his or her assets. They learned too late that you can’t have illusory protection. You need solid, effective asset protection!

As asset protection planners, we see many well-protected clients threatened with litigation, only to have the threat fizzle. The effectiveness of protection is most striking when several co-defendants are sued. The protected clients are dropped from the suit which proceeds full-steam against the unprotected, deep-pocket defendants.