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 two people planning to marry. Prior to marriage, the parties must prepare and sign the contract. The prenuptial 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 contract law and domestic relations law provisions outline specific requirements for when a prenuptial agreement is enforceable and/or valid. Some of those requirements are:

  • the prenuptial agreement must be written down;
  • the prenuptial agreement must be supported by adequate “consideration;” 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, so long as the agreement properly complies with all laws relating to the preparation and negotiation of the contract. Additionally, a valid prenuptial agreement must not violate public policy or be “unconscionable.” This is a very complicated legal issue, as the court determines whether the prenuptial agreement is “unconscionable” or fair at the time of the divorce, not at the time the agreement was signed. 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 does not last 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, financial planners, realtors and accountants.

In addition, individuals who may receive inheritances in the form of (1) personal property, (2) real estate or (3) business interests will benefit from a Prenuptial Agreement. The best course of action for these individuals is a contract that clearly identifies these assets as separate property.

Why You Need an Attorney

It is also important to understand that even if you identify property as “separate property” in a Prenuptial Agreement, 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. 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.

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 25 years. Our office will aggressively argue the validity of, enforce, and defend prenuptial agreements for our clients, from the first meeting through trial.