The Basics of Prenuptial Agreements

A prenuptial agreement, sometimes also referred to as an antenuptial agreement or a premarital agreement, is a contract which is entered into by two parties prior to their marriage. The prenuptial agreement usually includes provisions for spousal support and/or division of property in the event of a divorce or dissolution. In addition, a prenuptial agreement sometimes also includes provisions concerning the amount of assets, if any, which will pass to the surviving spouse upon the death of the first spouse. Since spouses have various rights to assets upon the death of the other spouse, a pre-nuptial agreement can define and modify those rights before marriage occurs. A postnuptial agreement is an agreement regarding these same matters which is executed after the couple is married. In Ohio, postnuptial agreements are not recognized.

The following five elements in some form or another are required for a valid prenuptial agreement:

1. The agreement must be in writing.
2. The agreement must be executed voluntarily by the parties.
3. There must be a full and fair disclosure at the time of execution of the agreement of all of each party’s assets and debts.
4. The agreement cannot be unconscionable.
5. The agreement must be executed by both parties in the same manner as is required for a deed to be recorded which means that the signatures must be acknowledged before a notary public.

Prenuptial agreements do not deal with issues relating to children of the marriage in general and specifically custody and visitation issues. These issues are to be determined in accordance with what would be in the best interests of the children at the time that the controversy, i.e., the divorce or dissolution, occurs.

Prenuptial agreements are usually very important when one or both parties have a significant amount of wealth which they want preserved for their respective families. In addition, if there is the potential possibility of a significant inheritance, then one party may want a prenuptial agreement executed. However, in the state of Ohio, generally any assets which an individual receives as a gift or an inheritance will not be included in any sort of property division as a result of a divorce if those gifted or inherited assets remain in the recipient spouse’s name or the use of those gifted or inherited assets can be traced to the purchase of new assets in the recipient spouse’s name.

The case in Ohio which defines prenuptial agreements is Gross v. Gross (1984), 11 Ohio St. 3d 99, 102. In that case, it was determined that prenuptial agreements are valid and enforceable: (1) if they have been entered into freely without fraud, duress, coercion, or over reaching; (2) if there was full disclosure or full knowledge and understanding of the nature, value, and extent of the prospective spouse’s property; and (3) if the terms do not promote or encourage divorce or profiteering by divorce. The court further determined that the issue of the prenuptial agreement’s fairness at the time of a divorce is only relevant to matters involving spousal support. With regards to matters involving property division, in a divorce situation, the only relevant issue is the agreement’s fairness at the time of its execution.

Therefore, if you are contemplating a marriage and have a significant amount of assets which you want protected for your family, it may be beneficial for you to discuss your potential need for a prenuptial agreement with an attorney. You will then be able to make an informed decision as to your need for a prenuptial agreement before your marriage.

NOTE: This general summary of the law should not be used to solve individual problems since slight changes in the fact situation may require a material variance in the applicable legal advice.