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

By Andrew Zashin*

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.

Take steps today to avoid divorce’s rocky road

By Andrew Zashin*

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

Valentine’s Day just occurred and love was in the air – and on the store shelves. As you were being inundated with chocolates and red candy hearts, divorce was hopefully the furthest thing from your mind. But if you proposed to your sweetie on Feb. 14, a little bit of knowledge now can save a whole lot of mishegoss (craziness) down the road, should the happily not last ever after.

Couples are marrying and remarrying later in life, which means that more people are entering into marriage having already accumulated some personal wealth. As a divorce attorney, I am continually counseling clients on what portion of their estate is marital property and what portion is their separate property.

At a very, very macroscopic level, property owned before the marriage is premarital, or separate, property of the spouse who owns it, as are inheritances and gifts made to one spouse. And all other property obtained during the marriage is marital property that will be divided upon divorce. There are dozens of “but-ifs” to this rule, but it is a good starting point for your planning.

When a couple is divorcing, it is generally pretty easy to figure out which stuff is one spouse’s separate property – the car you got as a college graduation gift and your bubbe’s china will be staying with you. The bar mitzvah money that your husband socked away will stay with him.

But other types of property – especially investments like real property and retirement and other accounts that fluctuate in value – are often more problematic to divide. The short answer is that the change in value from the start of the marriage to the end of the marriage is the marital portion that will be divided. But the court will assume that everything is marital unless proven otherwise.

So the person claiming something or some part of something is separate has the burden to prove its separateness by tracing it back to its premarital source – a task that can be both costly and difficult. This principle is based on the assumption that marital funds contributed to the growth in value or equity. On the other hand, passive growth on separate property does not automatically convert separate property to marital property.

Confused yet? Don’t be. Just remember one basic rule of thumb – the more separate you keep your separate property during the marriage, the more likely it will still be considered your separate property should you divorce.

If you, for example, have a retirement account from a previous job, rather than rolling over the funds into your current plan, you might want to keep these separate and let them passively grow in order to keep them out of the marital estate.

If you are getting a loan or, better yet, a gift, from your parents to purchase a home, keep good documentation as to whether the intended recipient is you alone or you and your spouse. If it is a loan, sign a promissory note with repayment terms. It is hard to convince a judge years later that the money from Mom and Dad was a loan if it is apparent that your parents never actually intended to collect until the marriage soured. And it is even more difficult to claim that the money was intended to benefit only you when the check was made out to both of you.

This is not to suggest that you are not going to be able to claim a separate property interest in the investment account that you started before the marriage and continued contributing toward. But, whether you are planning to marry or are already married, some careful thought to your joint and separate financial planning can save you a whole lot of heartache and money later.

*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.

2023-11-10T13:38:17-05:00February 15th, 2012|Divorce, Marriage, Property Division|

Lynn France Discovers Husband’s Marriage on Facebook

The matter of Lynn France is a disturbing one. Lynn was married to a man whom she
discovered had married another woman from the other woman’s Facebook page! 
The husband, John France, held a press conference and explained that he did not
need a divorce from Lynn because their marriage was defective and therefore
Lynn and he were never really married!  We believe that it is John
France’s legal reasoning and logic that is defective. The “Official Statement” is our firm’s response to that press conference and to John France’s positions. I think that our
statement illuminates the context and explains our positions as well.

– Andrew Zashin
Blog Editor-in Chief

2023-11-10T13:38:18-05:00August 9th, 2010|Marriage, Social Media|
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