Prenuptial Agreements – Are They Enforceable and Do I Need One

Prenuptial Agreement – Defined

A Prenuptial Agreement (also known as an “ante nuptial” agreement) is a contract between a man and a woman who are anticipating getting married.  This contract must be properly prepared and signed prior to marriage.  The prenuptial agreement details each of the parties’ rights and obligations in the event of Divorce or Dissolution, and or the death of either party.  As with all types of contracts, the various contract laws and domestic relations laws that are relevant to the formation and enforcement of Prenuptial Agreements provide specific requirements for the contract to be enforceable or valid. These requirements  include but are not necessarily limited to, the Ante-nuptial or Prenuptial Agreement being reduced to writing and be supported by adequate “consideration”.  The term “consideration” basically means that the individuals who are signing the contract must obtain something in exchange for their agreement to the terms of the contract.  There also must be full disclosure of financial issues by both parties to the contract.  This generally involves each person to the contract providing a detailed list of all of the assets and liabilities they have prior to the marriage, along with values for each and every asset and liability.

Prenuptial Agreements in Ohio – Are They Enforceable

Yes, Prenuptial Agreements in Ohio can be enforceable provided that the agreement properly complies with all of the laws relating to the preparation and negotiation of the contract, as well as public policy’s adhered to by Ohio courts.  To be valid, Prenuptial Agreements in Ohio must not violate public policy or be “unconscionable”.  This can be a very legally complicated issue, as the issue of whether an ante-nuptial agreement is “unconscionable” or fair, is determined by the Court at the time of the divorce, not at the time of signing the agreement.  In addition, as with all contracts in the state of Ohio, the Prenuptial Agreement must be entered into without duress or overreaching.  In the event that a Prenuptial Agreement’s validity is challenged, these issues will be carefully scrutinized by a Court when determining whether the Prenuptial Agreement is enforceable at the time of the Divorce.

Further, one of the most important issues that can be dealt with in a prenuptial agreement is spousal support (alimony).  In Ohio, spousal support provisions in a Prenuptial Agreement are examined for fairness as of the date of the divorce, not as of the date of the signing of the Prenuptial Agreement. 

Who Needs a Prenuptial Agreement

Any individual who wishes to clearly identify what assets they wish to keep as their separate property in the event that the marriage does not last until death, can benefit from a Prenuptial Agreement. These agreements can be particularly important for individuals who own their own businesses by themselves, or for those who are in business with others such as, doctors, lawyers, financial planners, realtors and accountants.   In addition, individuals who have received inheritances in the form of personal property, real estate or business interests can utilize the Prenuptial Agreement to clearly identify these assets as separate property, not to be divided in the event a divorce occurs somewhere in the future.

It is also important to understand that even if certain property is identified as “separate property” in a Prenuptial Agreement, if it is “commingled” with marital assets during the marriage, your separate property can become marital property for purposes of division in a divorce.  As part of the Prenuptial Agreement process, it is critical to understand how to handle your separate property during your marriage if you wish to keep your “separate property” separate.

For all of these reasons, anyone who is seeking to have a Prenuptial Agreement prepared, enforced or nullified, should consult with an attorney who has experience in aggressively litigating these types of agreements.  To avoid potential pitfalls, anyone wishing to enter into a Prenuptial Agreement should consult with their respective attorneys well in advance (several months) of their planned wedding date.  While there is no “perfect” number of days that a prenuptial agreement needs to be signed prior to the marriage for it to be valid, it can become a point of contention when attempting to enforce the agreement at the time of divorce.

At the Law Office of Anthony W. Greco, we have been representing Clients on both sides of the enforcement and nullification of Prenuptial Agreements for more than 23 years.   From the complex, high asset cases where one side is trying to have the Prenuptial Agreement declared enforceable and valid, to the case where the other side is attacking the legality and enforceability of the agreement due to coercion, duress or fraud, our office is equipped to aggressively represent their Client’s from the first date of our representation through trial.

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