A Prenuptial Agreement (also known as an “ante nuptial” agreement or “prenup”) is a contract between two people planning to marry. Prior to marriage, the parties must prepare and sign the contract for it to go into effect. The agreement details each of the parties’ rights and obligations in the event of a divorce or a dissolution, and/or the death of either party. As with all types of contracts, various provisions outline specific requirements for when a prenuptial agreement is enforceable and/or valid. Some of those requirements are:
- a prenuptial agreement must be written down;
- adequate “consideration” must support a prenup; and
- there must be a full disclosure of financial assets and liabilities by each party.
Prenuptial Agreements in Ohio – Are They Enforceable?
Yes, Prenuptial Agreements in Ohio are enforceable if the agreement complies with laws governing preparation and negotiation of a contract. Additionally, a valid prenup must not violate public policy or be “unconscionable.” This is a very complicated legal issue, as the court determines whether the agreement is “unconscionable” or fair at the time of the divorce, not at the time the parties signed the agreement. In addition, the contract must be entered into without duress or overreaching.
Further, one of the most important issues that a prenuptial agreement deals with is spousal support. In Ohio, courts examine spousal support provisions in prenuptial agreements as of the date of the divorce, not as of the date of the signing of the contract.
Who Needs a Prenuptial Agreement?
Any individual who needs to clearly identify what assets they wish to keep as their separate property in the event that the marriage ends will benefit from a Prenuptial Agreement. These agreements are particularly important for individuals who own their own businesses by themselves. These contracts are also helpful for those who are in business with others such as, doctors, lawyers, realtors, and accountants.
In addition, individuals who may receive inheritances in personal property, real estate, or business interests will benefit from a prenup. The best course of action for these individuals is a contract that clearly identifies these assets as separate property.
Do You Need an Attorney?
It is also important to understand that even if you identify property as “separate property” in a prenup, 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 these reasons, anyone seeking to have a Prenuptial Agreement prepared, enforced or nullified, should consult with an attorney who has experience in litigating these types of agreements. To avoid potential pitfalls, anyone considering a prenup should consult with their attorney well in advance of a wedding date. There is no “perfect” number of days before a wedding to ensure the validity of a prenuptial agreement. However, it can become a point of contention when enforcing the agreement at the time of divorce.
Our firm has represented Clients on both sides of the enforcement and nullification of Prenuptial Agreements for over 25 years. Attorney Greco and his team will aggressively argue their client’s position from the first meeting through trial. Click Here to contact us and see what sets us apart from other firms.