Did not make a Prenuptial Agreement, Are Postnuptial Agreements allowed?
I am often asked whether a couple that never got around to executing an antenuptial (or prenuptial) agreement before they got married can execute a postnuptial agreement after the marriage ceremony. The answer varies greatly from state to state, and it is important to get an answer from an advisor familiar with the laws of the state in which the couple is residing.
Does Ohio Allow Postnuptial AgreementS?
In Ohio, the answer is clearly “no”. This goes back to the concept in Ohio that a husband and wife have a duty to support each other. In furtherance of this notion, Ohio statutory law specifically states that a husband and wife cannot alter their legal relations with each other by contract. Two exceptions to this law exist. Ohio Revised Code section 3103.06 states that postnuptial agreements (separation agreement) are valid when spouses agree to a separation in contemplation of a legal separation, divorce or dissolution and make provisions for the support of either of them and their children during such separation.
The second exception was created by the courts. The Ohio Supreme Court held in the case of In re Weber’s Estate, that a written agreement, executed after marriage by a husband and wife, which recites that it was made for the purpose of setting forth in writing an oral antenuptial agreement between the parties and also recites the terms thereof and affirmatively shows that it is a memorandum of such oral antenuptial agreement, constitutes a sufficient memorandum or note of such agreement to comply with the statute of frauds and is not a contract between husband and wife to “alter their legal relations” as prohibited by law.
A few decades ago, a postnuptial agreement was widely considered to be invalid throughout the United States. However, of the fifty states plus the District of Columbia, 32 currently recognize postnuptial agreements, 16 have no clear policy and Ohio is one of only 3 that does not recognize such agreements. This change in attitude was brought about by the increase in divorce rates and the introduction of no-fault divorces. Our neighboring states of Indiana and Kentucky currently honor such agreements.
Don’t rely on the exception of after the marriage memorializing in writing an oral antenuptial agreement. That plan is fraught with potential problems and is very risky! If it’s your desire to have a valid and enforceable prenuptial agreement, take the steps necessary and plan ahead and get one properly drawn up with the help of an attorney experienced with antenuptial agreements!
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Joseph E. Balmer
Joseph Balmer manages the Probate, Trust and Estate Administration department at Dayton, Ohio, law firm, Holzfaster, Cecil, McKnight & Mues, and has been certified by the Ohio State Bar Association as a specialist in Estate Planning, Trust and Probate Law since 2006.