Waiver of ED


#1

My STBX & I have a prenup where we both waived ED. How then is property typically divided? Does title to property hold, even if said property was acquired during the course of the marriage?


#2

If you have waived ED, then your prenup should state how property would be divided in the alternative. Any jointly held property will be treated as marital and you would each be entitled to half of the value of the same. Your best bet may be to have a consultation with an attorney to have that person review your prenup; we would need to review the document in it’s entirety in order to advise on how your property should be divided.


#3

Is there any precedent or contingent plan for dividing property in the event ED is waived and the prenup isn’t very explicit in how property is divided? What would the court do in a situation like this?


#4

If you waived ED, and there is no property division language in your prenup, then you will likely be dividing property based on how it is titled. For instance, if there is a marital residence, and you aren’t entitled to ED, then you will need to file a motion for partition to divide the property.


#5

Is there case law or some sort of precedent showing that title to property should hold in the absence of ED or clear property division language? I just have the feeling most courts don’t have a contingent plan to divide property in the absence of ED or clear contract language, and I’d like to have something to refer to.


#6

I am not familiar with a particular case on point. I suggest you have a consultation with an attorney to discuss the best way to move forward; there may be a way to invalidate the prenup or language addressing property division that is relevant. It is hard to advise without having reviewed the whole document.