If you and your spouse signed a prenuptial agreement (commonly referred to as a “prenup”), it will play a critical role in your divorce. While each agreement is unique, most prenups cover some or all of a number of common subjects. Many of these subjects relate to what happens in the event that one spouse files for divorce or both spouses agree to dissolve their marriage.
When preparing for a divorce with a prenuptial agreement, it is crucial to understand the role that your prenup will play in both the process and the outcome of your divorce. A well-written prenup could save you considerable time and money while helping to avoid many of the common conflicts that arise between divorcing spouses.
Is Your Prenuptial Agreement Valid?
The first question you need to be answered is: Is your prenuptial agreement valid? There are actually a number of different issues that can render a prenup unenforceable. These include:
- Coercion, duress, or overreaching
- Failure to fully disclose certain relevant information prior to signing
- The parties’ agreement to terminate the prenup at some point during their marriage
If your prenup is invalid, then it will have not have any bearing on your divorce. However, the question of validity is often itself a point of major contention. When the validity of a prenuptial agreement is in dispute, this will be one of the first issues that need to get resolved in order to end the parties’ marriage.
What Does Your Prenup Agreement Say About…
A significant portion of most prenuptial agreements focuses on each spouse’s rights in separate and marital property. Separate property generally consists of assets that either spouse owned prior to the marriage (as well as income from those assets), while marital property refers to income and assets acquired after the exchange of vows. Although Ohio’s divorce laws include provisions that cover the distribution of property, spouses often prefer to plan ahead and specify who will own what in the event of a divorce.
Liability for Debts?
A prenuptial agreement can also establish which spouse will be liable for shared debts that survive their divorce. This typically includes things like mortgages, car loans, and credit card balances. Oftentimes, the apportionment of debts will be tied to the distribution of property (for example, the spouses may agree that one of them will keep the family home and also take on sole responsibility for the mortgage after their divorce). A prenuptial agreement can specify which spouse will be responsible for divorce-related legal fees as well.
Spouses can also agree to set their respective rights to receive and obligations to pay alimony in their prenup. There are a number of factors that go into calculating alimony in a divorce, but if the spouses have agreed in advance the Ohio courts will generally uphold the terms of their agreement as long as there aren’t any issues with enforceability.
For business owners, prenups can help ensure that they will continue to own and retain control over their company in the event of a divorce. Business interests are subject to the same general property division rules as other assets, but they're obviously are many more complexities involved. If you and your spouse co-own the business, your prenup could also specify what each former spouse’s role will be after the divorce.
Finally, your prenup may also specify the method by which you and your spouse should handle any disagreements that are not resolved by the other terms of the agreement. For example, a prenuptial agreement may specify that you and your spouse are required to submit to mediation before taking your divorce to court.
Laubacher & Co. | Experienced Divorce Attorneys in Cleveland, OH
If you have questions about your prenup, we invite you to contact us for a complimentary, confidential consultation. To speak with an experienced divorce attorney at our offices in Cleveland, please call (440) 336-8687 or contact us online today.