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Antenuptial Agreements and Temporary Support

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It is not unusual for the various Appellate Districts in Ohio, or in other states, to render decisions which are inconsistent with each other. Rulings in one district are not binding on the lower courts of other districts. When such conflicts arise, they can only be resolved by a ruling by the Supreme Court of that state or by the state legislature.

Recently, a conflict among Ohio districts was reported in a case involving the granting of temporary support during the pendency of a divorce case. In Kleinman v Kleinman, a Montgomery County case, the parties prior to their marriage entered into an antenuptial agreement which contained a waiver of both temporary and permanent support. Wife filed for divorce, sought, and received an order of temporary support. The validity of the agreement was not contested. During the pendency of the case, husband paid $32,000 of temporary support. At final trial, husband requested a credit for the amount of temporary support he paid. The court set aside the temporary support order and granted husband his requested credit. The court reasoned that unless there was a finding that the agreement was invalid and not enforceable, the waiver of temporary support had to be enforced.

The holding in Kleinman was in conflict with cases decided in other counties including Cuyahoga and Summit. Those cases held that despite a valid and enforceable antenuptial agreement to the contrary, the court could within its discretion grant temporary support. Temporary support is meant to maintain the parties economic status quo during the pendency of a case.

The Supreme Court of Ohio has addressed the issue of whether permanent support can be granted despite the existence of a waiver or limitation in an otherwise enforceable antenuptial agreement. The waiver or limitation must be deemed to be conscionable under the conditions existing at the time the agreement is to be enforced, not the time at which it was made.

Neither the Supreme Court not the Ohio Legislature has addressed the issue of temporary support. The issue needs to be resolved.

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