By Robert L. Mues   |   April 25th, 2015

Does Tearing up Your Executed Prenuptial Agreement in Ohio Revoke or Invalidate it?

prenuptial agreement ohioRecently, a New York court held that a husband could enforce a prenuptial agreement against his wife upon divorce, even though at the time the parties had no intention of ever being bound by the agreement and he ripped up his photocopy of the agreement at the same time his wife ripped up her original.  Braha v. Braha, 2014 NY Slip Op 51532.


The question presented here is, would the case yield the same result if it was adjudicated in Ohio?


In Braha, the parties stated that they entered into a prenuptial agreement only because the husband’s father was insistent they do so.  However, on their honeymoon they simultaneously ripped up copies of the agreement and threw them away.  The parties were married for twelve years before the marriage began to dissolve.  Upon dissolution, the husband produced his original copy of the prenuptial agreement and sought to enforce it.  He testified that he had destroyed only a photocopy of his agreement, while his wife had destroyed her original.

In its decision, the court there held that the wife did not provide sufficient evidence by which to set aside the agreement.  The court stated that the plain language of the contract was clear and unambiguous and therefore must be followed. It specifically pointed to a provision stating that the prenuptial agreement could not be “altered, modified, terminated or revoked, except by an instrument executed and acknowledged by both parties with the same formalities as this Agreement.”  As such, the court said that the wife could not now claim that the parties had orally agreed to not be bound by its terms as the only way to rescind it would have been by an additional document signed by both parties.

The Supreme Court of Ohio has defined an antenuptial agreement as, “a contract entered into between a man and a woman in contemplation, and in consideration, of their future marriage whereby the property rights and economic interest of either the prospective wife or husband, or both, are determined and set forth in such instrument.”  Gross v. Gross, 11 Ohio St.3d 99, 102, 464 N.E.2d 500 (1984).  The Court has stated that these agreements are valid and enforceable, (1) if they have been entered into freely without fraud, duress, coercion, or overreaching; (2) if there was full disclosure, or full knowledge and understanding of the nature, value and extent of the prospective spouse’s property; and (3) if the terms do not promote or encourage divorce or profiteering by divorce.”  Gross, at paragraph two of the syllabus.  In addition, because prenuptial agreements are contracts, the law of contracts will generally apply to their application and interpretation.  Johnson v. Johnson, 2nd Dist. Miami, 2011 WL 345671, ¶10, citing Fletcher v. Fletcher, 68 Ohio St.3d 467, 628 N.E. 1343; Saari v. Saari, Lorain App. No. 08CA9507, 2009-Ohio-4940, ¶25.

While there seems to be no case directly on point in Ohio, the Second District was faced with a case wherein one party was claiming that the parties orally modified or waived their prenuptial agreement.  Id. at ¶ 72.  In Johnson v. Johnson¸ a wife claimed, among several other things, that her and her husband orally agreed that she would quit her job and become a homemaker, thereby modifying or waiving their prenuptial agreement.  Id.  Applying general contract law, the court held that her claim was without merit as the plain language of the contract stated that it could not, “be changed or terminated orally.  No waiver of any provision of this Agreement shall be valid unless in writing signed by both parties.”  Id. The court also noted that there was no language in the agreement indicating that the parties expected her to work full-time; and therefore, it was unclear which provision of the agreement was allegedly waived or modified.  Id. In essence, the court reverted back to simple contract law to determine if the prenuptial agreement was enforceable.

Ohio Prenuptial Agreement Conclusion:

Therefore, it seems that the court will apply general contract law and look to the plain language of the contract to, “give effect to the intent of the parties.” Johnson, supra at 11, citing Hamilton Ins. Serv., Inc. v. Nationwide Ins. Cos., 86 Ohio St.3d 270, 273, 1999-Ohio-16.  If the agreement is not available, the court may look to extrinsic evidence to determine the existence and validity of the contract.  In the end, if the same identical facts of Braha were presented to an Ohio court, the court would likely apply contract law and find the prenuptial agreement enforceable because not only did the husband keep his original copy, but the plain language of the contract stated that the only way it could be terminated was by a subsequent document signed by both parties.

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Robert L. MuesAbout The Author: Robert L. Mues
Robert Mues is the managing partner of Dayton, Ohio, law firm, Holzfaster, Cecil, McKnight & Mues, and has received the highest rating from the Martindale-Hubbell Peer Review for Ethical Standards and Legal Ability. Mr. Mues is also a founding member of the "International Academy of Attorneys for Divorce over 50" blog.

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