Cincinnati Family Law & Divorce Blog: Ohio Post-Nuptial Legislation
Prior to marriage, Ohio law allowed couples to enter into a pre-nuptial agreement with one another. This pre-nuptial agreement, also known as an antenuptial agreement, can assist the couple in defining and dividing their assets and debts in the event of future death, separation, or divorce and is often used to protect assets that a person owns prior to the marriage.
Until now, Ohio law did not allow spouses to enter into agreements setting forth their rights and obligations after they married except for the purpose of separating. Ohio was in the minority of states in prohibiting this. The reason for this is Ohio lawmakers took the position that it is against the public good to allow spouses to negotiate for rights with one another because this could result in harm to marriages. However, a bill recently passed and signed into law will now allow married couples to enter into post-nuptial agreements with each other.
On December 22, 2022, Governor Mike DeWine signed Ohio Senate Bill 210 into law. The Bill will go into effect on March 23, 2023. The Bill includes updated language for Ohio Revised Code section 3103.06. Specifically, ORC 3103.06 will now state that a husband and wife may (1) enter into a postnuptial agreement that alters their legal relations with each other, (2) modify or terminate an antenuptial or post-nuptial agreement or any other agreement that alters their legal relations with each other, and (3) agree to an immediate separation and make provisions for the division of property and support of either of them and their children during the separation.
Any agreement altering legal relations between spouses established under ORC 3103.06 shall be valid and enforceable if all of the following apply: (1) the agreement is in writing and signed by both spouses, (2) the agreement is entered into freely without fraud, duress, coercion, or overreaching, (3) there was full disclosure, or full knowledge, and understanding of the nature, value, and extent of the property of both spouses, and (4) the terms do not promote or encourage divorce or profiteering by divorce.
It remains to be seen what legal issues arise once married couples in Ohio begin to enter into post-nuptial agreements. The law on this subject will evolve over time, to address problems that emerge. People are urged to enter into these agreements only after very careful consideration of the potential consequences and to consult with an attorney in drafting an agreement that will impact their legal rights indefinitely.