To prevent the distribution of your assets to a potential spouse if you later divorce, consider drafting a prenuptial agreement. A prenuptial agreement is an agreement between you and your potential spouse that describes how you would like your property distributed upon divorce. However, to be recognized as valid in Ohio, the agreement must fulfill certain requirements including being signed in the presence of two witnesses.
Ohio has several requirements to create a valid prenuptial agreement. For example, you and your potential spouse have a duty to disclose all of your property to one another prior to signing the agreement. This includes your debts as well as your assets. Also, two witnesses must be present when you and your potential spouse sign the agreement. While not required, it may be smart to have an attorney review the document to ensure it is fair. If your spouse is represented by an attorney, you may wish to obtain legal advice as well.
A prenuptial agreement must be signed before you and your spouse marry. An agreement signed after marriage is referred to as a post-nuptial agreement. In addition, the longer you and your spouse have to think about the agreement prior to signing it, the better. For example, a court may not honor a prenuptial agreement that is presented to a spouse minutes before the wedding ceremony is to begin. Courts want both parties to have time to contemplate the seriousness of the agreement and its legal consequences.
During a divorce proceeding, the prenuptial agreement is introduced by one or both spouses and the court is asked to enforce the agreement. For a prenuptial agreement to be enforced by the court, the agreement must conform to all of Ohio's prenuptial agreement requirements. If the agreement is executed under duress, fraud or circumstances that violate public policy, the court may not enforce the agreement. For example, all issues related to child support, custody and visitation included in a prenuptial agreement will not be enforced by the court as a violation of public policy because these issues are decided by the court based upon what is in the child’s best interest. A severance clause can also be included in the agreement. A severance clause states that if the court finds one part of the agreement invalid, the spouses would still like the remainder of the agreement to be enforced.
Without a prenuptial agreement, or if the agreement is deemed invalid by the court, the court will distribute property according to equitable distribution in Ohio. Equitable distribution means the court will divide your marital property in a manner that it deems to be fair, but not necessarily equally. However, property acquired prior to the marriage is considered to be a spouse's separate property in terms of equitable distribution.