Postnuptial Agreements Will Soon Become Legal in Ohio

Ohio Law Recognizes Postnuptial Agreements and Treats Them the Same as Prenuptial Agreements

Ohio SB 210 expands a married couple’s ability to enter into agreements with each other to modify their legal relations. By passing SB 210, Ohio law now recognizes postnuptial agreements and treats them the same as prenuptial agreements. Prenuptial agreements are those that are entered into BEFORE marriage, while postnuptial agreements are those that are entered into AFTER marriage. This new law goes into effect the end of March. Click here to read it.

A few of the most notable provisions of Ohio’s new Postnuptial Agreements law enabling spouses to modify their marriage are as follows:

• Expands the ability for spouses to enter into agreements that alter legal relations.
• Establishes postnuptial agreements and treats them the same as antenuptial (prenuptial) agreements.
• Allows spouses to modify antenuptial (prenuptial) and postnuptial agreements.
• Establishes requirements for agreements entered between spouses that alter legal relations and provides that agreements that meet these requirements are valid and enforceable, with or without consideration.

Amendment Provides the Division of Property Upon an Agreement to an Immediate Separation

Most notably, under previous Ohio law section 3103.06(A) of the Revised Code, a husband or wife could NOT alter their legal relations without agreeing to an immediate separation. Now, SB 210, which was signed by Governor DeWine on 12/22/2022 and becomes effective on 3/23/2023, amends section 3103.06 to allow a husband or wife to enter into a postnuptial agreement that alters their legal relations with each other (1) AND allows a husband or wife to modify or terminate a prenuptial or postnuptial agreement (2). Lastly, the amendment now provides for the division of property upon an agreement to an immediate separation (3), prior law did not provide for such provisions in a separation agreement.

Joseph E. Balmer, III, a HCMM attorney certified as a Specialist in Estate Planning, Trust and Probate Law by the Ohio State Bar Association, says: “This law does a good job of balancing the need to protect the spouse in the less advantaged financial position with providing greater estate planning flexibility and acknowledging the changing situations of married couples.”

In order to create a valid and enforceable agreement, regardless of whether there was any consideration (something of value given in return for a promise), four (4) requirements must be met. The requirements are as follows:

1. The agreement is in writing and signed by both spouses;
2. The agreement is entered into freely without fraud, duress, coercion, or overreaching;
3. There was full disclosure, or full knowledge, and understanding of the nature, value, and extent of the property of both spouses;
4. The terms do not promote or encourage divorce or profiteering by divorce.

Postnuptial Agreements in Ohio

Attorney Balmer additionally notes: “So long as no coercion or duress is involved, couples can amend antenuptial agreements when appropriate or make decisions on the division of assets without being subject to current Ohio laws or surviving spouse rights.”

SB 210 will soon bring Ohio in line with the vast majority of other states by recognizing postnuptial agreements. The practicality of this bill is that it finally allows Ohio spouses to change or cancel the terms of a previously agreed upon prenuptial agreement, or to create new terms as circumstances always change. This bill reflects the needs of a constantly evolving family life and is flexible in assisting Ohio spouses achieve that goal.

Need to Discuss Drawing a Post-Nuptial Agreement? Schedule An Appointment:

We are experienced in drafting pre-nuptial agreements and know the correct way to prepare post-nuptial agreements under the new Ohio law allowing them. Please see our new Postnuptial Agreements help page by clicking here. At Holzfaster, Cecil, McKnight & Mues, located in Dayton, Ohio, top-notch estate planning doesn’t need to be complicated or expensive! To learn more, go to our website at www.hcmmlaw.com. Or, please contact us at 937 293-2141 to schedule an appointment for an initial consultation which can be conducted either by phone, Zoom, or in person.

Publisher’s Note:

I want to thank Shane McDonough who is externing with our firm this semester. Shane is a third-year law student at the University of Dayton School of Law. He will be graduating in May of 2023. Thanks for the great job on this blog Shane!

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