Prenups And Postnups In Ohio: What To Know
Prenuptial (also called antenuptial agreements) and postnuptial agreements are one of the most misunderstood aspects of family law. They can go a long way toward protecting a spouse’s rights and assets in the event of a divorce, dissolution or death, but they are not necessarily ironclad if they are not prepared and executed properly and timely.
At Sowald Sowald Anderson Hawley & Johnson, we provide counsel and guidance for clients throughout Central Ohio regarding family legal issues, including prenuptial and postnuptial agreements. To clear up some of the misconceptions about prenuptial and postnuptial agreements and to help you better understand your rights, our prenuptial and postnuptial agreement attorneys have answered some of the most commonly asked questions about them.
How do prenuptial agreements work in Ohio?
A prenuptial agreement is a document created between two people before their marriage. It can address issues such as division of marital and separate property, spousal support and rights of inheritance in case of a divorce, dissolution or death of a spouse.
How do I know if an Ohio court will uphold my prenup?
Ohio is unique among states because it does not adhere to the Uniform Prenuptial Agreement Act (UPAA). In our state, family law courts will enforce most prenups as long as:
- Both spouses agree to it voluntarily and understand its terms
- It accurately accounts for each spouse’s assets and debts
- It is not unfairly one-sided
- It is executed before the marriage without undue influence or duress
If a prenuptial agreement does not meet these terms, though, a judge might not uphold it. And while current Ohio law only recognizes agreements executed prior to the marriage, the Ohio Legislature is currently considering a bill that would allow post-nuptial agreements to be recognized.
How long does a prenup last?
In most cases, a prenuptial agreement lasts the length of the marriage. Some might have clauses that expire after a certain period; for example pre-marital property becoming subject to division after ten years of marriage. Others might include provisions that take effect after a certain length of time; for example, agreeing to pay alimony after five years of marriage.
Can prenuptial agreements protect future assets?
Yes. The protection of future assets is one of the most common functions of prenups. Assets acquired before the marriage are considered separate assets and are usually exempt from division in a divorce or dissolution. Assets acquired after the marriage, though, usually count as marital assets. To protect their share of marital assets, a spouse can use a prenuptial agreement to preserve their share of future income, property, real estate and other assets.
What issues should a prenuptial agreement address?
A prenuptial agreement should address the details of property distribution and spousal support. For instance:
- How to divide marital assets
- How to divide a family business
- Whether to divide or sell the marital home
- The amount and duration of alimony payments
Some couples include unusual arrangements addressing custody of their pets, fines for every time someone cheats or penalties for weight gain. These clauses, however, do not usually hold up in court.
Who can benefit from a prenuptial agreement?
Both spouses can benefit from a prenup as long as the contract is fair. It is crucial that each spouse has a prenuptial agreements attorney to represent them in the drafting of the agreement to protect their rights. In some unfortunate cases, one spouse could manage to get a prenup in place that places the other at a financial disadvantage. When each partner uses a prenuptial agreement to protect their rights and avoid future conflict, though, these documents can prove highly beneficial.
Can unmarried couples benefit from prenuptial agreements in Ohio?
A prenuptial agreement is an agreement made in contemplation of marriage that only becomes effective once the marriage occurs. For couples that do not intend to marry, a cohabitation agreement can be created and executed between the couple. A cohabitation agreement is similar to a business partnership agreement, in that it identifies each partner’s separate assets, addresses how to divide assets acquired during the relationship and protects each party’s rights.
What about postnuptial agreements in Ohio?
A new law that took effect in 2023 allows couples to obtain postnuptial agreements in Ohio. Similar to a prenup, postnups allow couples to draw up a contract to identify their separate and marital assets and how to divide these assets in case they divorce. The difference is that postnuptial agreements take place after a marriage. And, like a prenuptial agreement, postnuptial agreements cannot include child support or child custody arrangements. Spouses must address these issues in separate agreements upon their divorce.
Postnuptial agreements now effective in central Ohio
In a significant legal shift, postnuptial agreements were once prohibited in Ohio until the passage of Senate Bill 210 in 2023. This recent legislative change allows married couples in Ohio to now consider and enter into postnuptial agreements. Such agreements are particularly useful for couples facing a wealth disparity or navigating complex family situations that necessitate clearly defined decisions regarding property division and custody matters.
Life brings inevitable changes during marriage, sometimes rendering prenuptial agreements outdated. A postnuptial agreement emerges as a strategic tool to address evolving circumstances, offering a legal framework to adapt to the shifting dynamics of a marital relationship.
It is crucial to note that postnuptial agreements in Ohio, being a relatively new legal development, come with stringent requirements for enforceability. In that case, consult with a reputable family law attorney to get familiar with unforeseen legal issues before your case.
Why do you want a postnup?
Ohio postnuptial agreements serve as a strategic legal tool for various scenarios, allowing couples to adapt their financial arrangements to changing circumstances. Key reasons one might consider a postnup include:
- Amending an existing prenup: Adapt to evolving circumstances within your marriage by modifying the terms of your initial prenuptial agreement.
- Completely wipe out existing prenup: Seek a fresh start by nullifying your current prenuptial agreement through a postnuptial agreement.
- People without a prenup: Establish financial guidelines on assets even if you initially entered a marriage without a prenuptial agreement.
- Postnups that prepare for death: Safeguard the rights of surviving members by outlining financial provisions in the event of a spouse’s death.
Under the old Ohio law, you could not change a prenuptial agreement or get rid of one. This new law allows tremendous flexibility for couples.
Regardless of your postnup desires, you are better off hiring a skilled family attorney who is up to date with this new Ohio family law. We are equipped to assist couples in preparing a valid and enforceable agreement while ensuring that the execution process adheres to legal standards.
Ask Us More About Prenuptial And Postnuptial Agreements
Whether you are considering marriage or divorce, it is important to know the difference between separate and marital assets and your rights regarding each of them. Our attorneys can help you learn more about prenuptial (antenuptial) and postnuptial agreements. Sit down with us for an initial consultation in which we can discuss your finances, your future and your relationship. To reach us, please call our Columbus office at 380-217-3322 or send us an email.
