February 2, 2017
Ohio Prenuptial Agreements
Written by Erb Legal LLC
Prenuptial agreements, also referred to as antenuptial agreements, can be a valid instrument for clearly defining and limiting the rights of married couples regarding marital property and the payment of spousal maintenance. It is often entered into when one party has substantially more assets than the other and wishes to retain most of it should the parties separate o their marriage dissolves. Another reason is that a party may have a prior marriage and wants to ensure that most of the assets are passed to the children of the prior relationship.
These agreements are valid under Ohio Revised Code 3103.05 so long as it is in writing, is signed by both parties and two witnesses and the parties contracted fairly and reasonably.
If you are contemplating a prenuptial agreement or your spouse has prepared one for you to review, promptly contact a Medina divorce attorney to discuss the issues involved and the reasonableness of the agreement.
A court will closely scrutinize a prenuptial agreement to see if it unreasonable or if there was less than full disclosure or other irregularities in its presentation and signing. The factors a court will use in determining the validity of an Ohio prenuptial agreement include:
• Was it entered into in contemplation of a pending marriage?
• Do the provisions promote or encourage divorce?
• Did both parties have a reasonable time to review the agreement before the wedding?
• Were all assets and liabilities of both parties fully disclosed and in what manner were they disclosed—for instance, it is highly advised that both parties attach detailed lists of the separate property being brought into the marriage
• Is there evidence of duress or coercion in the signing of the document?
• Is the agreement so unreasonable or unfair as to be unconscionable?
• Did both parties have the document reviewed by their own counsel?
Issues regarding the agreement’s validity and enforceability arise when the parties divorce or separate or a spouse passes away. As to whether a provision pertaining to spousal maintenance is unconscionable so as to render it voidable, the court will look at the recipient party’s present circumstances to see if that individual is experiencing hardship or has had to apply for public assistance. For example, the party might now be unemployed or unemployable, has an extreme medical or health condition, is now caring for multiple minor children or there are other aggravating circumstances. If so, the court will then examine a number of factors pertaining to how much spousal maintenance to order and for how long under ORC 3105.18.
If you waived spousal maintenance or agreed to an apparently small or nominal amount and are now experiencing significant hardship, promptly contact a Median divorce attorney to revisit this issue.
What Can be in a Prenuptial Agreement?
It is important to know what can be in a prenuptial and what cannot be included. For example, you cannot disinherit your spouse in a will, but your spouse can waive his or her statutory share in a prenuptial agreement, which can be substantial. For example, the surviving spouse has a right to take against the will of one-third or one-half of the balance of the estate and a right to live in the marital estate rent-free for one year. In the case of a death with you as surviving spouse, you only have 4 months after the appointment of an executor or administrator of the decedent’s estate to challenge or move to set aside the prenuptial agreement under ORC 2106.22 or the agreement is deemed valid. For this reason, promptly have your Medina divorce attorney review your prenuptial agreement after your spouse passes away.
You also cannot stipulate as to the custody of children or contract as to the amount of child support to be paid. There may not be restrictions or stipulations in regard to visitation either.
Including provisions regarding certain conduct or lifestyle choices are equally unenforceable. However, you may provide for the disposition of certain property on the occurrence or nonoccurrence of other events so long as they are not unethical, criminal, or violate public policy.
You can provide as to which assets will be marital or separate as well as the division of assets and debts upon separation, divorce, or death such as gifts or property transfers made directly to one spouse or the other from family members. Sufficient details of your property and the debts to be divided should be in your agreement to avoid any misunderstandings.
When contemplating asking for or signing a prenuptial agreement, it is advisable to contact a Medina Divorce Attorney before signing any documents.