Before you get married, you may want to establish a prenuptial agreement as a safety net. However, not all prenuptial agreements are created equal, and they aren’t always legally enforceable.
So, before you move forward, it’s important that you understand what makes an enforceable prenuptial agreement in Ohio and what doesn’t.
Keep reading to find out what the prenuptial agreement requirements are in Ohio and the common legal issues couples run into.
What Is a Prenuptial Agreement?
A prenuptial agreement is a type of legal contract between two individuals who intend to get married. It is governed by Ohio law and is primarily used as a way of clearly defining the rights and obligations of each spouse regarding things like property and support if the marriage comes to an end.
Prenups can get a bad reputation, as many couples may feel that they simply predict divorce. However, these are very useful legal documents that help to create structure and expectations, as well as peace of mind.
Prenuptial Vs Postnuptial
Another term you may have heard is a postnuptial agreement, which is often confused with prenuptial agreements. However, these are two separate types of agreements that are used in different circumstances.
Unlike a prenuptial agreement, which is created before the marriage, a postnuptial agreement is created afterwards. It serves many of the same functions as a prenup, except it alters some of the terms that the couple originally agreed upon due to changes in circumstances.
Here are some examples of when you may need a postnuptial agreement:
- Change in financial circumstances.
- The couple is separating.
- The couple wishes to opt out of Ohio’s dower rights or survivorship tenancy.
Keep in mind that Ohio will review postnuptial agreements very harshly to ensure they maintain the standard of fairness without any coercion or undue influence.
Legal Requirements for Enforceability in Ohio
The good news for couples who want an enforceable prenuptial agreement in Ohio is that this is relatively straightforward. Ohio law recognizes most prenups as valid and enforceable as long as they meet the following criteria:
- Voluntary cooperation: Both parties must enter this written agreement completely voluntarily without any coercion. This includes both parties having a complete understanding of what this document does.
- Financial disclosure: Because prenups often center on finances, both spouses need to enter the agreement with complete financial disclosure and honesty. Concealment of any kind could result in the prenup being thrown out.
- Legal counsel: Both parties are expected to have an opportunity to retain independent legal representation to ensure the prenup meets Ohio’s requirements for full disclosure and fairness. Having legal representation also ensures that the prenup is created in the best interest of both parties, not just one.
It’s also worth mentioning that certain prenup terms are typically enforceable, while others aren’t. For example, terms involving property division, business control, estate rights, and spousal support waivers are usually enforceable. Whereas provisions for child support, child custody, allocations of parental rights, or incentives for divorce aren’t enforceable.
Common Reasons Prenuptial Agreements Are Challenged
If your prenuptial agreement fails to meet any of these criteria in Ohio, there’s a good chance that it could be challenged later on. That is why you need to make sure it is enforceable from the very start.
Here are some examples of the most common reasons why prenuptial agreements are challenged in Ohio:
- Suspected fraud
- Concealment
- Incomplete financial disclosure
- Unconscionable terms
- Suspected coercion
To avoid running into these issues, you should work closely with a family law attorney from the start before your prenup is officially drafted. Not only can they help you with this process, but they can also ensure you fully understand the prenup terms and how they apply to you.
Best Practices for Creating a Strong Prenup
Now that you know what makes a prenuptial agreement enforceable in Ohio, how can you create a strong prenup that won’t be challenged? Here are some tips you and your spouse can use when creating an Ohio prenup:
- Start early: It’s incredibly important that both parties start discussing the terms of their prenup early on so that they are on the same page. Also, last-minute prenups are more likely to be challenged due to suspected duress or coercion.
- Review time: Each spouse and their attorney needs plenty of time to review the completed prenup to check for any inconsistencies or issues. This ensures everyone is on the same page and won’t be surprised later on.
- Experienced legal counsel: Both parties should work with a family law attorney who has experience with prenuptial agreements. An attorney can help ensure the prenup is enforceable and has met the standards set by Ohio law.
FAQ Section
Can a prenup be thrown out in Ohio?
Possibly, if there is proof that the prenup is not enforceable for one of the reasons mentioned above. But to have a prenup thrown out, you would need to contest it in court.
Do both spouses need separate attorneys?
Yes. Ohio law requires both parties to have separate legal counsel; otherwise, the court will strongly suspect the prenup to be unfair.
Can a prenup address future spousal support?
Prenups can be used to address future spousal support arrangements; however, it is at the court’s discretion to determine whether or not these terms are fair.
Get the Help of a Family Law Attorney in Ohio
When you create an Ohio marital agreement, the goal is usually to create a legally binding document that cannot be challenged. So, it is best to work with an Ohio prenuptial agreement lawyer who will know how to make sure these agreements are enforceable. At Garretson & Holcomb, LLC, our family law attorneys in Ohio are here to help you understand the legal requirements for prenuptial agreements so that you don’t run into any issues later on. Contact us today at 513-863-6600 to get the process started with the help of a family law attorney.
