Dear Jeff & Andrew:
I am about to get married for the second time. My fiancée has also been married before. We are living in a home that is free and clear since I paid it off several years ago. Other than my house, neither of us has any valuable assets.
Although I hope this marriage will work, I understand that statistics may say otherwise. Do I need a prenuptial agreement in order to protect my home? My fiancée hates the idea of any kind of written contract and tells me that I should trust her to always do the right thing. She also tells me that premarital agreements are very unromantic and that she believes it is the wrong way to start a marriage. What are your thoughts?
Prenuptial agreements, though perhaps unromantic, serve a valuable purpose. Like most things in the law (and life), there is no one size fits all answer to your dilemma. At the moment, Ohio law would generally protect an unencumbered house that is brought into the marriage by one party. However, laws change. Prenups should define your rights and responsibilities, even if the law at the time of your divorce says something to the contrary.
In addition to a shift in the law, there are things that can happen during your marriage that would take separate property and turn it into marital property, in whole or in part. Unless you make major renovations to the home or spend significant amounts of money maintaining it, most courts will keep it as your separate property. However, infusion of cash or labor during the marriage may justify a court in finding that some of the value in the asset as marital. A prenup will allow you to define what would or would not cause marital property to be created.
Before you dismiss the idea as a buzz kill, it might be worthwhile discussing these issues with a lawyer. Then you can better determine the true extent of your risk as well as discussing means other than using a prenuptial agreement to protect your home.
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