Before marriage, a couple may enter into a contract governing the couple’s property rights and economic interests. These types of agreements are known by several different monikers, including premarital or antenuptial agreements, prenuptial agreements or prenups. Prenuptial agreements can be used to determine how a spouse’s property should be disposed upon the death of one spouse. Or, a prenuptial agreement may be used to determine how property will be divided upon a couple’s separation or divorce. These agreements may also provide for provisions governing spousal support. A prenuptial agreement can cover as much or as little regarding property rights and economic interests as a couple desires.
Enforceability of Prenuptial Agreements
Importantly, couples thinking about entering into a prenuptial agreement should recognize that specific requirements must be met in order to be valid and enforceable in Ohio. As a matter of public policy, Ohio courts enforce prenuptial agreements; however, because of the unequal bargaining positions that sometimes exist in a relationship, courts will carefully scrutinize them to ensure that one party has not taken advantage of another.
A court will enforce a prenuptial agreement if three basic requirements are met:
- If the couple entered into the agreement freely without fraud, duress, coercion or overreaching;
- If there was a full disclosure, or full knowledge, and understanding, of the nature, value and extent of the prospective spouse’s property; and
- If the terms do not promote or encourage divorce or profiteering by divorce.
If these three conditions are met then a prenuptial agreement is valid and enforceable. Furthermore, if a prenuptial agreement is found to be valid, marital misconduct arising after the marriage by either party will not invalidate an agreement.
Postnuptial Agreements Are Not Allowed in Ohio
Postnuptial agreements are the same as prenuptial agreements with the only difference being that the former are entered into after the marriage. Many states permit married couples to enter into these agreements; however, Ohio is not one of these states. Specifically, Ohio law provides:
A husband and wife cannot, by any contract with each other, alter their legal relations, except that they may agree to an immediate separation and make provisions for the support of either of them and their children during the separation.
A married couple may enter into a contract governing a couple’s property only if it is done in connection with a legal separation. A legal separation is when a married couple chooses to live separately, but they do not terminate the marriage. The couple may then enter into a separation agreement that provides for child support, division of property, and allocation of parental rights.
Contact an Ohio Family Law Attorney
If you any questions regarding prenuptial agreements, it is an important to reach out to an experienced family law attorney. At Laubacher & Co., we have a team of experienced Cleveland family law attorneys who can help you prepare a prenuptial agreement and answer all your questions. Contact one of our attorneys today for a free initial consultation.