Protecting your rights & safeguarding your children’s future
Prenuptial Agreement FAQs
Q: When does it make sense to consider a prenuptial agreement?
Entering into a prenuptial agreement can be appropriate for couples with a wide range of personal and family circumstances. For example, fiancés who both bring substantial assets into the marriage may choose to use a prenuptial agreement to ensure that their marriage (or a divorce) will not create any questions about inheritance rights or estate planning gifts to beneficiaries. Business owners will also commonly use prenuptial agreements to avoid questions about ownership, management and control rights. Soon-to-be-spouses that have difficulty managing their budgets can even use a prenuptial agreement to establish parameters for spending during their marriage. The list is almost endless, and if you have questions about signing a prenuptial agreement, you should discuss your options with an attorney.
Q: What types of issues can a prenuptial agreement cover?
Setting aside issues of child support and child custody, in Ohio, prenuptial agreements can cover essentially any topics that are pertinent to the couple’s marriage. Some of the issues most-commonly addressed in prenuptial agreements include:
- Financial responsibility for living expenses and debts for assets shared during the marriage;
- Other provisions relating to financial management, including how the couple will file their taxes and whether they will open joint bank accounts.
- How the parties will divide their marital assets in the event of a divorce, including designating specific assets and income as separate (rather than marital) property;
- Provisions for payment of alimony; and,
- The spouses’ respective property rights in the event of a death during the marriage.
Q: What are some examples of fraud that can render a prenuptial agreement unenforceable?
Fraud is among the most-commonly-cited grounds for seeking to invalidate a prenuptial agreement. Examples of fraud that can render a prenuptial agreement unenforceable include withholding financial information and one spouse misrepresenting his or her financial holdings during the negotiation of the agreement. Misrepresenting income (i.e. one spouse falsely deflating his or her income in order to negotiate a more-favorable alimony provision) can potentially constitute grounds to set aside a prenuptial agreement as well.
Q: What is the best way to approach your spouse about signing a prenup?
Everyone’s situation is unique, so it is difficult to say what is the single “best” way to approach your fiancé about a prenup. Generally speaking, however, it is best to be honest and to clearly articulate your reasons for wanting to enter into a prenuptial agreement. If your fiancé understands why you want a prenup and understands that negotiating a prenup is not simply about “planning for divorce,” he or she may be more open to considering that a prenup may be in his or her best interests as well.
Q: Can a prenuptial agreement expire?
Yes, when crafting the terms of a prenuptial agreement, fiancés can include provisions stating a specific date or specific conditions upon which either (i) certain terms, or (ii) the agreement as a whole, will expire. For example, you and your fiancé may decide that your agreement should expire in 10 years; or, you may agree that the terms regarding ownership of one spouse’s business should expire if both spouses end up taking on active roles in the company.
Q: Is it okay to use a prenuptial agreement form that I found online?
As a general rule, any legal “forms” you find online should be avoided. When it comes to most legal issues, there are simply too many variables at play to rely on a fill-in-the-blank document, and negotiating a prenup is no exception. Your prenuptial agreement should reflect the specific personal, family and financial considerations that will impact your marriage, and it should be written specifically in order to comply with the requirements of Ohio law.
Q: What are the basic requirements for a valid prenuptial agreement?
You must be contemplating marriage when entering into a prenuptial agreement. You must each completely and honestly disclose all of your assets and liabilities before creating your prenuptial agreement. Neither party may be coerced or unduly influenced to enter into the agreement. Two witnesses are required when you sign the prenuptial agreement. The agreement may not be unconscionable, meaning that it may not be clearly one-sided and ridiculously unfair to one party.
Q: What makes a prenuptial agreement unenforceable?
Fraud, undue influence, misrepresentation, and duress are factors that can render a prenuptial agreement unenforceable. Additionally, the terms may not go against public policy or counter to the law. For example, you may not include stipulations for child support or parental responsibility and visitation in a prenuptial agreement, since public policy decrees these issues must be determined based upon what is in the child’s best interest.
Q: Does it matter when we sign our prenuptial agreement?
It’s better to negotiate and sign a prenuptial agreement far in advance of your wedding. The strength of the agreement is enhanced by this as it supports the assertion that neither party was unduly pressured into the prenuptial agreement, nor had inadequate time to consider the terms.
Q: Can we both use the same attorney?
You must each have your own legal representation when negotiating and signing a prenuptial agreement to ensure that each party’s interests are fairly represented and protected.
Q: What about postnuptial agreements?
Postnuptial agreements are not valid in Ohio.
Prenuptial agreements are an excellent tool for couples contemplating marriage. However, it’s important that you ensure the legality of your agreement. Contact Laubacher & Co. for experienced legal counsel.