Prenuptial agreements, sometimes referred to as premarital or antenuptial agreements, are the best way to protect a client’s assets in the event of a divorce or dissolution. They are recognized as valid and enforceable under Ohio law, and the vast majority are upheld by courts when litigated — Ohio Revised Code § 3103.05.
While everyone hopes that their marriage will last forever, it is an unfortunate reality that many marriages end in divorce or dissolution. Despite popular perception, premarital agreements are not only important for people who have accumulated assets or inherited property prior to marriage.
Why have a prenuptial agreement? Beyond simply protecting any premarital assets, a prenuptial agreement can allow the parties to determine what will happen to the assets and income they accumulate during the marriage — Ohio Revised Code § 3105.171(A)(6)(v). Parties entering into their second marriage often want a prenuptial agreement to protect the interests of their children from prior relationships. They can also be used to ensure that a divorced spouse is not left destitute when there is a large financial disparity between the parties.
What makes a valid prenuptial agreement? If a prenuptial agreement is to be enforceable, both parties must be given a meaningful opportunity to consult with an attorney, and it is best for both parties to be fully represented by counsel. The parties may not be represented by the same lawyer. One lawyer can always only represent one party. The agreement must be in writing and signed freely by both parties. There cannot be any coercion, fraud or duress. Each party must disclose all of their assets and acknowledge that they have a full understanding of the nature and extent of their potential spouse’s property, including its value. Exhibits will be attached to the prenuptial agreement listing each party’s separate property.
When should the prenuptial agreement be completed? The practice of our firm is to have a prenuptial agreement signed at least 30 days prior to the marriage. The closer to the marriage that the prenuptial agreement is executed, the more likely it will be that an argument of coercion or overreaching will be raised. While signing the prenuptial agreement on the day before the wedding will not automatically mean that it will be set aside, it is risky to do so.
What can a prenuptial agreement do? The prenuptial agreement can provide for what will occur in the event of the death of either party or the termination of the marriage. It will provide for what each spouse will receive in the event of the death of the other spouse, and it will also provide for how the parties’ property will be divided in the event of marriage termination. The agreement can address the issue of spousal support, but the court will have the ability to relook at that issue at the time of the marriage termination. The agreement can also specify how the parties will arrange and manage their finances during the course of the marriage.
What can’t a prenuptial agreement do? A premarital agreement cannot provide for how child support or parental rights and responsibilities will be addressed. The terms of the agreement must not promote divorce or profiteering by divorce.
The firm is very experienced in drafting complete and complex prenuptial agreements for individuals in Hamilton and the surrounding Ohio counties. To learn more or to set up a consultation, contact our Cincinnati office at 513-421-4420 or use our online contact form.