Cleveland Jewish News

Prenuptial, postnuptial agreements affect property division

By Steve Mark | August 13, 2024 | Andrew Zashin consulted and quoted

According to Statista, in 2021, there were about 690,000 divorces in the U.S. That same year, Ohio’s divorce rate was 2.6 per 1,000 residents. That’s considerably lower than the 4.7 rate in 1990. That said, divorce happens. And, often, there is an eventual contest over property ownership.

Andrew Zashin, founding partner of Zashin Law in Mayfield Heights, discussed how marriage and the dissolution of a marriage can affect the potential division of property in Ohio, which is considered an equitable division state.

“Generally speaking, marriage affects property ownership directly and significantly,” Zashin said. “Unless the parties have entered into either a prenuptial or postnuptial agreement, upon divorce, courts presume that both properties own the property jointly and equally. If a court finds that the property should not be divided 50-50, that property will be divided equitably, which in layman’s terms means fairly.”

“If either party argues that property belongs to him or her separately, the onus is on that party to prove the separate nature of the property by a clear and convincing burden of proof. This is a relatively high standard, considering the normal standard of proof is a preponderance of the evidence, or more likely than not, which is the basic burden of proof in a civil case.”

Forty-one states, including Ohio, are considered equitable distribution states, he said.

“Ohio’s laws are like the laws of most equitable division states,” Zashin said. “All cases are unique, however, and must be considered, in light of fact specific circumstances. Therefore, the outcome of every case depends, not only on the law, but its unique facts, and the discretion of the jurist hearing that case.

“Ohio was an outlier regarding its failure to recognize post-nuptial agreements. A postnuptial agreement is one that allows married couples to enter into an agreement altering property rights after a couple has been married. These agreements are useful tools in many circumstances to help couples stay together and plan for their families or themselves, thereby avoiding the necessity of divorce.”

According to Strictly Weddings, 10% of marriages in the U.S. include prenuptial agreements.

“A relatively small number of people have prenuptial agreements and even fewer have postnuptial agreements, Zashin said..

“The divorce code in Ohio, combined with case law, while cumbersome, is comprehensive. The reasons for this vary from situation to situation.

“Moreover, individuals who think they have separate property prior to marriage, or those who think that they may come into separate property, or those that want to keep some assets separate, like a family business, should consult with an experienced family law attorney before getting married,” Zashin said.