A prenuptial agreement or antenuptial agreement is a contract between two people who plan to marry. These contracts usually address the issues of spousal support, premarital property, separate property, expenses during the marriage and division of debts in the event that they decide to end their marriage. They also commonly address the issue of property division for a business, real estate and student loans. This contract does not take effect until the parties are married. The idea is that both parties have a full understanding of the assets and debts of each party before they enter into marriage and allocate that property upon termination of the marriage.
Yes, because Ohio does not recognize post-nuptial agreements. State laws vary in every state. Prenuptial agreements must be in writing. Once the parties draft their prenuptial contract, it allocates which assets and debts are to be addressed during the marriage. Prenuptial agreements in Ohio must be completed and signed by both parties prior to the marriage. In Ohio, you cannot enter into a postnuptial agreement. So, if clients change their minds after they are married, they cannot enter into a post-nuptial agreement. A prenuptial agreement cannot be modified after marriage, therefore it does not offer the flexibility options that other states might offer.
If the parties do not have a prenuptial agreement, the court will have to determine what is marital property and make a decision for equitable distribution. When you have a properly drafted and enforceable prenuptial agreement you have more control of what is considered marital property.
Can you avoid child support with a good prenup?
No. In Ohio, you cannot contract away child support in a prenuptial agreement regardless if a child is born during or prior to the marriage. So, for this reason, it’s important to lay out and plan all the terms of clients’ assets and debts and plan for the court to address child support in the event the parties want to end their marriage.
Can future children be written into a prenup?
No. Future children cannot be written into a prenuptial agreement in Ohio. Courts will not enforce any contract that was entered into before a child was born. Child custody is so unpredictable, which makes it impossible to allocate parental rights and responsibilities. It’s important to know what a prenuptial agreement entails and to discuss these allocations with your future spouse.
If you have children prior to the marriage or from another relationship, those cases usually have custody court orders in place. A prenuptial agreement cannot modify previously court-ordered custody matters.
Can a prenup be signed under duress or pressure?
No. This is the most common issue to address when drafting a prenup. Lots of clients come to our office who plan on marrying their spouse usually within the next week. It’s important to give yourself enough time to review the contract and any legal documents pertaining to the agreement and review it with legal counsel so that the terms are fully understood. The court will not uphold a contract if they believed one spouse was pressured into signing it.
Will the court enforce our agreement?
In the event of a divorce or dissolution, a parting wish to enforce their prenuptial agreement needs to be filed with the court. At the time of divorce, the parties must be aware of the terms and conditions of their agreement.
In Ohio, prenuptial agreements have to meet all the requirements in order to be enforceable. One of the most common and important issues to mention is making a full disclosure of all assets and debts within the agreement. If this is not specified in the agreement, any property that was not disclosed could be considered marital property.
Amy Turos brings extensive experience in family law, estate planning and motor vehicle accidents throughout Portage, Trumbull, Geauga and Summit counties.