Cincinnati Family Law & Divorce Blog: Does Ohio Allow Postnuptial Agreements?
Prenuptial agreements are executed before a couple marries to define the parties’ relationship during the marriage and to settle the parties’ assets and affairs in the event of a future death, separation or divorce. Similarly, postnuptial agreements meet the same objectives, with the only difference being that they are entered into after the marriage. Prenuptial and postnuptial agreements address a variety of concerns regarding financial issues, property division, or the rights and responsibilities of each party during or after the marriage. While prenuptial agreements are permitted in all fifty states, some states, such as Ohio, do not allow postnuptial agreements.
According to Ohio Rev. Code Ann. § 3103.06, married couples may only contractually alter their marriage through the process of divorce, dissolution, or legal separation. These processes all must accompany a physical separation of the parties. A postnuptial agreement is not permitted under Ohio law. Postnuptial agreements are executed when the parties intend to stay together but would like to set forth parameters that may deviate from what the law would provide them in a divorce, dissolution or legal separation, should they ever initiate such a process. Because postnuptial agreements involve married couples contracting with one another to alter their relationship without separating, they are not permitted in Ohio. Prenuptial agreements, however, are permissible because they precede the marriage contract.
Kentucky allows prenuptial and postnuptial agreements so long as the contracts themselves are reasonable and enforceable. This means that both parties must enter into to the terms of the agreement of their own free will and not due to fraud or misrepresentation. A couple that initially entered into a prenuptial agreement may still seek a postnuptial agreement later in their relationship. However, the postnuptial agreement must reflect the prenuptial agreement’s terms on modification.
Although Ohio’s rejection of postnuptial agreements reflects the view that they encourage divorce, many find that such agreements strengthen their relationship with their spouse by peaceably resolving concerns well before they come to fruition in the context of a divorce or legal separation proceeding.