Global Family Law Services

The Dress, the flowers, the chuppah and – the prenup?

| Jun 20, 2016 | Jewish Divorce / Get, Marriage, Prenuptial Agreements, Spousal Support

This article originally appeared as a column for the Cleveland Jewish News.

Ah, wedding season! Love is in the air! You’ve found the perfect clothes. You’ve found the perfect venue. You’ve designed your chuppah, refined your guest list, and made your meal selections. Only one thing left: sign the prenuptial agreement. Or should you?

While often associated with high net worth individuals, the truth is that a prenuptial agreement can benefit those without millions in the bank, too. Prenups are frequently used to protect wealth that was acquired before a couple marries, as well as family money. These agreements can be used to ensure that children from a prior relationship will be provided for. They can require the giving – and acceptance – of a get (a Jewish divorce), and they can provide that the couple will have any divorce proceedings arbitrated by a beth din (a Rabbinical court) rather than litigated in civil court. Simply put, a prenuptial agreement is a contract that sets forth certain agreements regarding what will happen if the couple divorces, and sometimes also upon the death of one party.

While it sounds terribly unromantic, a prenuptial agreement can be a very important financial planning document for those of all walks of life. Some prenup signers were previously divorced and are entering their second, or later, marriage. Others are on their first marriage, but have accumulated wealth, or even debt, before saying “I do.” Some have children from other relationships and want to protect their children’s inheritance from a new spouse who might otherwise be able to take against their will.

Prenuptial agreements may also contain provisions regarding spousal support. Some may specify in great detail how much support a spouse will be entitled to upon a divorce, and some may specify there is to be no support at all. However, it is significant to note that, if even the remainder of a prenuptial agreement is determined by a court to be binding and enforceable, any spousal support award provided by such an agreement will be evaluated for reasonableness at the time of the divorce, and not at the time the agreement was signed. So if, for example, a party writes the next Harry Potter during the marriage, he or she may be expected to pay spousal support in spite of the existence of a prenuptial agreement providing that none would be exchanged at all.

Having said all of that, not everyone actually needs a prenuptial agreement. The definition of “separate property” is rather clear under Ohio law. In general, separate property is defined as an inheritance received by one spouse, a gift to only one spouse, or property that someone brought into a marriage. And in many, many cases, that separate property retains its “separateness” even without the benefit of a prenuptial agreement. That is, so long as the owner of the separate property can trace it (show where it came from, and show how it flowed from one account or form to another without being mingled with marital property), a divorcing party might expect to walk away with it anyway. So if your premarital property consists of a 401(k) plan or a savings account funded with your bar mitzvah money, it is probably safe.

They say that the best defense is a good offense. If you have any questions regarding how and whether you should protect yourself, it makes good sense to seek advice from an attorney well-versed in these issues so that you may determine whether or not you actually need a prenup to accomplish your goals and to make sure you are getting the protection you intend.

*Andrew Zashin writes about law for the Cleveland Jewish News. He is a co-managing partner with Zashin & Rich, with offices in Cleveland and Columbus.