Cincinnati Family Law & Divorce Blog: Do I Need a Pre-nup?

Ohio law allows written contracts between parties before a marriage that define various aspects of marital rights and rights upon the death of either spouse.  These contracts are called prenuptial agreements, premarital agreements, or antenuptial agreements.  All of these terms can be used interchangeably.  Prenuptial agreements may not always be enforced.  To avoid the most common challenges to these agreements, the following should be adhered to: (1) both parties should have lawyers represent them during the negotiation and execution of the agreement, (2) it should be signed as far in advance of the actual wedding as possible to avoid the possibility of coercion, and (3) there must be a complete and accurate disclosure of assets and debts between the parties.

Currently, Ohio law protects premarital assets and assets which are acquired during the marriage by gift or inheritance and a prenuptial agreement may not be needed.  It is often a misconception that you need a prenuptial agreement to ensure that you protect an inheritance you received from a family member.  These assets are characterized as separate property and they are not subject to division in a divorce settlement so long as the asset can be traced to an inheritance or gift, or it can be proven that it was owned prior to marriage and the asset is not commingled with marital funds/assets.  A prenuptial agreement is often more important to define how marital funds/assets accumulated during a marriage may be allocated upon a divorce or dissolution or how specific assets will be distributed upon the death of a spouse.  After a marriage, income earned or assets/debts accumulated are considered marital in nature and will be subject to equitable division upon termination of the marriage. A prenuptial agreement can redefine marital assets or change the default division under domestic relations law.  It can act as a contract to make a will and/or eliminate all rights to property under probate laws, including the right to act as an executor and administrator of your spouse’s estate.

There are many reasons why a prenuptial agreement may be wise.  In second marriages, where there are children from a previous relationship, a prenuptial agreement can ensure that certain assets are protected for these children upon death or divorce.   If one party has significant debt, the other party may end up having to pay some of that debt if there is no agreement.  If one party owns a business, a pre-nup can prevent forced valuations and liquidations.  Parties could agree that each would receive his or her own retirement account vs. sharing the accumulated retirements of both spouses. Prenuptial agreements are not allowed to regulate issues relating to the children of the marriage, in particular, custody, because matters involving children must be decided in the children’s best interests.  In situations where one spouse earns significantly more income than the other spouse, agreements can be reached about the amount and term of spousal support that should be paid upon a termination of marriage.  Although, prenuptial agreements can attempt to limit spousal support, a court at the time of a divorce can set this agreement aside, if it deems that the limitation is unconscionable.

In Ohio, parties are not allowed to enter into agreements after the date of their marriage that will be controlling in the event of divorce or death. The only exception to this rule is the allowance for people to enter into a Separation Agreement when they have decided to separate. Therefore, if a couple has not entered into a prenuptial agreement, they can’t provide for the same after they have married.