Ohio's Prenuptial Agreement Laws

By Elizabeth Stock

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.

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.

Requirements

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.

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Timing

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.

Enforcement

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.

Consequences

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.

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Can a Prenuptial Agreement Be Reversed During a Divorce in New York?

References

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Things Included in a Post-Nuptial Agreement

States have default rules for how property acquired by a couple during marriage is dealt with upon divorce. However, you and your spouse are generally free to agree to a different outcome by executing a post-nuptial agreement. These contracts are entered into during marriage and can also cover matters related to spousal support and the allocation of marital debts.

Can a Prenuptial Agreement Be Voided?

When your marriage is disintegrating and you suspect divorce is looming on the horizon, it can be a big comfort to know that you and your spouse had the foresight to sign a prenuptial agreement. Unfortunately, prenups don't hold up in divorce court 100 percent of the time. Judges can and have thrown them out when certain aspects are in flagrant violation of the law or public policy. If you changed your mind about your agreement after you signed it, you might have voided it as well.

Overturning a Prenuptial Agreement

Overturning a prenuptial agreement can be a little like pushing a boulder up a mountain with your shoulder. It’s doable, but difficult. At least one factor must exist that makes the agreement outrageously unfair. The legal term for such a prenup is “unconscionable.” The statutory rules for unconscionability vary somewhat from state to state, but some are standard. Successfully overturning a prenup means proving one or more of these factors were neglected or overlooked.

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