A prenuptial agreement, often called a prenup, is an agreement to manage risks. It is a document prepared and signed by two people who anticipate that they will marry. Its purpose is to manage riskvof a termination of the marital relationship by divorce, legal separation, or dissolution. Ohio has not enacted the Uniform Premarital Agreement Act – approved by the National Conference of Commissioners on Uniform State Laws as an attempt to streamline prenuptial agreement laws throughout the country. The Ohio statutes require that any premarital agreement be put in writing and signed. Prenuptial agreements are enforceable if they meet the standards set out by the statutes. The specific statute states that in order for a prenuptial agreement to be enforceable, it must:
Each of these elements is important, and if any prenuptial agreement fails to meet any of them, an Ohio court will not allow the agreement to be enforced. Each party must fully and accurately disclose any pre-marital assets and liabilities. Enforceability is enhanced when proof that disclosure took place is provided. Examples include bank accounts, retirement accounts, expected inheritances and complete tax returns. A good idea is to create an exhibit that is identifiable and/or attached to the agreement. It is also a protective measure to provide documentation well in advance of a wedding date so that any argument that the agreement was coerced can be blunted. Courts will be particularly conscientious to claims of fraud, dishonesty or coercion, so the parties should work hard to demonstrate fairness. An attorney cannot ethically represent both parties in preparing a prenup. We always demand that the party who is not our client be represented by counsel or have the prenuptial agreement reviewed by competent counsel prior to signing.
Your attorney should also make you aware of the limitations of a prenuptial agreement. First, the document cannot divide property that is acquired during the marriage. Property that is identified as non-marital at the time of the prenuptial agreement may lose non-marital status if it is commingled with marital property. The more traceable and identifiable the better. For instance, non-marital stock in XYZ Corp. may be sold to purchase ABC Corp. But woe unto the person who sells the non-marital property to pay marital debt or acquire a marital residence. At the time of your divorce it will be up to a court of proper jurisdiction to decide what is in the best interests of the child, therefore a prenuptial agreement cannot attempt to predetermine custody. Similarly, the amount of financial change may impact the court’s enforcement of spousal support provisions. The Courts may enforce provisions concerning spousal support as long as such provisions are fair at the time of the divorce and are consistent with Ohio spousal support statutes. Your attorney should include a “severance clause” that will make the terms of the prenup enforceable, even if a court finds a provision to be out of bounds.
There is no such thing as a “typical” prenuptial agreement. Your attorney should draft the document with an eye toward enforcement. The better your relationship with your attorney, the more likely it is that you will be free to openly discuss every aspect of the agreement. Your attorney should be empowered to employ experts to value and properly disclose your assets. We also stress to our clients that, unlike divorce litigation, the prospective nature of the prenup makes it fact specific. You may also want to include a mechanism within the agreement that can address matters short of a marital break-up. Conflict resolution devices like mediation, arbitration or counseling may be something to talk about.
Jamie L. Anderson dedicates her practice to representing families navigate the changes caused by a divorce or dissolution. She has made herself one of the Miami Valley’s most prominent family law attorneys and will use her experience to secure your family, your finances and your future. Jamie (OhioDivorceAttorney.com) represents clients throughout Montgomery, Greene, Clark,Miami and Warren Counties. Contact Jamie L. Anderson at (937) 879-9542 to schedule a free consultation.
