Prenuptial Agreements in Ohio

Historically, prenuptial agreements were viewed as a tool to manipulate a weaker spouse, particularly women. Nevertheless, legal protections exist to prevent one-sided or fraudulent agreements. For many couples, prenuptial agreements provide financial security in a marriage and can simplify divorce proceedings.

If you are contemplating a prenuptial agreement, it's important to know the rules governing agreements in your state. This article provides an overview of prenuptial agreements in Ohio and explains what makes a prenuptial agreement enforceable. If you have questions, you should contact a local family law attorney for advice.

What is a Prenuptial Agreement?

A "prenuptial agreement" or "antenuptial agreement" is a contract between two people who plan to marry. These agreements generally resolve issues of spousal support, expenses during the marriage and division of debts and property in the event of death or divorce. Although a prenuptial agreement must be in writing, couples can agree to certain terms before their marriage and put the agreement in writing after their marriage. Nevertheless, a prenuptial agreement doesn't take effect until the couple gets married.

Who Should Get a Prenuptial Agreement?

The rich and those who've experienced a previous divorce are most likely to want a prenuptial agreement. Also, a person who marries later in life may want to keep control of money and property that he or she has worked hard to earn. A prenuptial agreement can provide certainty in a divorce, rather than leaving things up to state law.

Often, prenuptial agreements are used by the very rich to keep money separate from a spouse or to keep money in the same family. However, an individual who has already gone through a bad divorce, who has a business or who has children from a previous relationship may enter into a prenup to protect his or her future.

When a couple says "I do," separate property can inadvertently become comingled or become marital property jointly owned by the couple. Because divorce is becoming more common, so are prenuptial agreements. A prenup can be a way for spouses to keep property separate and control their own unique financial futures.

What Issues Will a Prenuptial Agreement Cover?

Prenuptial agreements cover almost all issues that would be decided in a divorce proceeding. Generally, a prenup will address one or more of the following:

• each spouse's right to property owned individually or as a couple
• the division of assets and debts upon death or divorce
• the management of a business upon death or divorce
• each spouse's right to sell, use or transfer property during the marriage
• each spouse's right to the gifts or inheritances of the other
• whether either spouse will pay alimony to the other including how much and for how long
• each spouse's right to receive death benefits from the other's insurance policy, and
• any other issue the couple agrees upon.

Ohio courts have refused to enforce provisions in prenuptial contracts requiring a child to be brought up in a certain religion or allowing spouses to preserve tort claims against each other. However, Ohio courts have upheld agreements that allow one spouse to exclude the other from inheriting upon his or her death.

Can a Prenuptial Agreement Resolve Child Custody and Child Support in Ohio?

Prenuptial agreements can't fully resolve issues of child custody and child support. But Ohio does allow parents to set forth some basic child care responsibilities in an agreement. For example, an agreement can designate a certain parent to pay the costs of maintaining the family home until any children reach 18 years old. However, parents can't designate child support amounts or custody and visitation schedules in a prenuptial agreement.

A judge must make final decisions on custody and child support at the time they are pending - these questions cannot be decided in advance through a premarital agreement. The best interests of a child are paramount to any custody decision and are evaluated at the time of the custody proceeding, regardless of what a prenuptial agreement may say.

Will an Ohio Court Enforce My Prenuptial Agreement?

Ohio doesn't follow the crowd and hasn't adopted the Uniform Prenuptial Agreement Act (UPAA). Prenuptial agreements are controlled by Ohio state law.

Certain basic contract elements are required in every prenuptial agreement. Specifically, an agreement must be in writing and signed by both future spouses. Moreover, the couple must actually reach an agreement before they marry, although the agreement may be put in writing after the couple is married. Finally, a marriage must actually take place for a prenuptial agreement to take effect.

In most cases, a court will enforce a prenuptial agreement as long as the following factors exist:

• each spouse entered into the agreement freely or voluntarily
• each spouse fully disclosed his or her liabilities, assets and debts
• each spouse fully understands the nature and value of the other's property
• the terms of the agreement don't promote divorce, and
• the agreement is reasonably fair.

A prenuptial agreement can't be unconscionable (unfairly one-sided). Although a couple can decide spousal support under a prenuptial agreement, the amount must be fair at the time of divorce. For example, in one Ohio case an agreement involving alimony was thrown out because it was unconscionable. In the prenup, the couple agreed to an alimony award that was unconscionably low when compared to the husband's large income at the time of the divorce.

In most cases, prenuptial agreements will withstand the scrutiny of a judge. Nevertheless, prenuptial agreements can be complicated and you may need the assistance of an Ohio family law attorney to ensure your assets are protected.