In Ohio, postnuptial agreements are invalid. Thus, a husband and wife cannot enter into an enforceable contract with each other about property division upon death or divorce. So don't think that this subject can be put off until after the honeymoon! However, prenuptial agreements, sometimes referred to as antenuptial agreements, are valid if done correctly; and they can be very important in protecting one's assets in case of divorce or death.
For a prenuptial agreement to be enforceable, certain legal requirements must be met. The prenuptial agreement must be entered into in contemplation of a pending marriage. Also, both parties must completely disclose all of his and her assets and liabilities to the other prior to execution of the document. The document must be executed freely with a complete absence of duress or coercion. Both parties should be represented by separate lawyers. There needs to be unpressured negotiations as to the terms and conditions, and a full understanding of the implications before the document is signed. Timing can be very important. If one party presents a prenuptial agreement to the other just a couple of days before the wedding with a demand that it be signed, a court is unlikely to enforce it if the parties later divorce. Finally, the agreement must not be unconscionable. Thus, it must not be so one-sided that it is outrageously unfair to either party.
The language and terms in a prenuptial agreement vary considerably based upon the wishes of the parties and the facts in each case. There are common subjects that might be discussed and agreed upon such as: how the disclosed assets that each party brought into the marriage would be divided if the marriage is terminated; are they to be treated as separate property and not subject to division by a divorce court? Sometimes, prenuptial agreements indicate that property acquired after the marriage by either party is to be treated as an individual's separate property as long as it is kept separate and not co-mingled with joint assets or those of the other party. Prenuptial agreements may spell out how spousal support is to be ordered if the parties divorce, if no spousal support is to be paid or if a specific amount or one time period is to be awarded. Is the divorce court to retain jurisdiction over modification of the amount of spousal support in the future? Prenuptial agreements also may indicate that debts brought into the marriage by either party shall remain the separate debts of the party incurring them if the parties' marriage is terminated.
In addition, prenuptial agreements will usually address the issue of death of the parties. Under Ohio law, you cannot specifically disinherit a spouse. A surviving spouse has certain statutory rights such as receiving the first two (2) automobiles of the deceased spouse (if not specifically bequeathed in the will and up to a value of $40,000), the right to live in the marital residence rent free for one year, the right to a family allowance (the first $40,000 of the estate), and the right to take against the will (either ½ or 1/3 of the balance of the estate). But all of these statutory rights may be waived in an prenuptial agreement. This allows the decedent to leave his or her assets to whomever he or she wishes and leave the surviving spouse as much or as little as the decedent desires.
As mentioned above, it is crucial to have legal representation prior to executing a prenuptial agreement. These documents can be advantageous to one side or the other. One size does not fit all! Copying a form from the internet and signing it can truly be disastrous. If presented with a proposed prenuptial agreement, in all likelihood, it probably is more advantageous to your spouse-to-be than to you. Prenuptial agreements can be a tremendous tool in protecting your assets for your children and protecting against your spouse from receiving most of your assets if you die or the marriage is short lived. However, it is important that you clearly understand all of the terms and how they will affect you prior to executing such an agreement. Discussing these issues with an attorney and reviewing such a document with your attorney prior to entering into such an agreement is essential to prevent possible serious regrets if the marriage does not last or your spouse dies before you and possibly leaving you in dire financial distress. If you are contemplating the preparation of a prenuptial agreement, talk with an experienced lawyer before discussing the desire with your fiancé. Having accurate background information about all the possible options and ramifications BEFORE talking about it can be priceless!
In 2007, recognizing the need for the public to have around-the-clock access to valuable Ohio divorce and family law information, we started publishing the Ohio Family Law Blog. Our attorneys are very passionate about family law issues. That fact is apparent if you take a bit of time reading their blog articles. We have posted articles on a wide variety of family law topics, including ones on the subject of prenuptial agreements.
The attorneys at Holzfaster, Cecil, McKnight and Mues have been representing and protecting the rights of individuals considering marriage and the role a prenuptial agreement may serve. We would welcome an opportunity to discuss your circumstances in detail. Please don't hesitate to call us at (937) 293-2141 or email us by clicking here. Additionally, we have an emergency phone number, (937) 760-4357, that is answered by one of our divorce lawyers around-the-clock.
Divorce and Family Law Matters
