You’ve told your friends and family, the wedding playlist is curated, the seating chart skillfully arranged… look at you, masterfully working your way down the wedding to-do list like a pro! Now, you’ve reached “prenup” on your list. First of all, well done prioritizing the health of your financial future! And you’re smart to do some research before grabbing a pen and paper to quickly write out an agreement at your kitchen table. In Ohio, prenups must meet certain requirements in order to be valid. What requirements? Do I need an attorney? Keep reading to find out the answers to all of your questions and more!
Is a lawyer required for a valid prenuptial agreement in Ohio?
No. You are not required to hire an attorney in order to have a valid and enforceable prenuptial agreement in Ohio (also known as an “antenuptial agreement”). But when determining the enforceability of the prenup in the future, a court often considers whether a lawyer was involved in drafting. At the very least, each party needs to have had an opportunity to consult with one. Unfortunately, many people only scan contracts before signing them. But prenups in particular can have extreme and lasting consequences on the finances and lifestyle of the parties involved. Therefore, Ohio courts prefer that each party have an objective, independent attorney to thoroughly explain the consequences of the prenup’s language before it’s signed. To be enforceable, prenups must be signed voluntarily. And receiving legal advice before signing a prenup helps confirm that each party entered into the agreement voluntarily (Millstein v. Millstein (2002)).
Does Ohio uphold prenups?
Yes, Ohio generally upholds prenuptial agreements if they’re in writing, signed voluntarily by the parties, void of language encouraging divorce, and include full disclosure of the value and nature of both parties’ property. If a prenup is contested, courts look at the circumstances surrounding the signing of the prenup when determining its enforceability. And each party must have had a meaningful opportunity to consult with an independent attorney as discussed above. (Fletcher v. Fletcher (1994)).
How does Ohio divide assets in a divorce?
Ohio divides property during a divorce under the rule of equitable distribution. What does this mean? Equitable distribution means that marital property (and sometimes separate property in Ohio) is divided fairly, but not necessarily equally. (Ohio Rev. Code Ann. § 3105.171). When you and your partner sign a prenup before getting married, you get to change the rules of how your property will be divided if there’s a divorce. For example, you can classify the income you earn during marriage and the appreciation on your retirement benefits during the marriage as separate property. If your marriage is dissolved in the future, your partner won’t have a right to that income or the appreciation on your retirement benefits. Without a prenup, those assets would likely be up for division.
Can an Ohio prenup waive Alimony?
Parties can modify or waive their right to alimony (also known as “spousal support”) in an Ohio prenuptial agreement. But courts may consider whether substantial changes in circumstances since the prenup was signed have now made language related to alimony no longer reasonable and appropriate (Ohio Rev. Code Ann. § 3105.18(F)(1)). If enforcement of the spousal support language would cause a party to face hardship when attempting to return to the prior standard of living post-divorce, a court might strike the maintenance language completely (Vanderbilt v. Vanderbilt (2014)). In making this decision, the courts look to see if there was a substantial change of circumstances during the marriage, such as a considerable change in the standard of living due to an increase or involuntary decrease in the party’s wages, or extreme health complications that could alter the employability of the disadvantaged spouse (Ohio Rev. Code Ann. § 3105.18(F)(1)).
Let’s use an example to demonstrate this concept. A couple signed a prenup in their twenties at the beginning of their careers when they were living paycheck to paycheck. The agreement put a cap on spousal support at $200 a month for ten years. Fast forward twenty years, and the couple decides to dissolve their marriage. At this point, twenty years after they drafted and signed a prenup, the husband’s career flourished, bringing in over a million annually. His wife spent the past twenty years raising their children and supporting him in his career. The court could look at the substantial change in circumstances and see that it would be a hardship for the wife to continue her current standard of living on $200 a month with a twenty-year gap in her resume.
A similar situation happened in the case of Zimmie v. Zimmie, and the court held the alimony provision unconscionable (Zimmie v. Zimmie, 1984)). To protect alimony provisions, anticipate potential future changes in lifestyle by including more flexible language, such as using a percentage of income as support instead of a fixed amount. Contemplating future changes in lifestyle when drafting your prenup, and predetermined how these changes could affect maintenance, could save the spousal support provisions from being struck by the court (Ohio Rev. Code Ann. § 3105.18(F)(1)(b)).
Can I write my own prenuptial agreement?
There is no law in Ohio prohibiting you from drafting your own prenuptial agreement. As long as your agreement is compliant with Ohio state laws, such as proper financial disclosure, lack of coercion/duress, etc., then it should be upheld. But with your financial future on the line, this might not be the best thing to DIY. Well-respected online platforms like HelloPrenup or a local family law attorney could help lead you through the prenup drafting process while expertly navigating Ohio state laws and incorporating your desires into the language.
Can only one person hire one an attorney?
As we’ve discussed, Ohio law doesn’t require either of you to hire an attorney. But keep in mind that both parties should at least have enough time to consult with one if they so wish. This is especially true if you are likely to benefit from the prenup more than your partner; it’s not advisable that only you (the advantaged party) have an attorney while your partner is unrepresented.
Another question is whether couples can share an attorney. To answer that one quickly—no. Attorneys cannot represent two people on opposite sides of a prenup. Skimping on a prenup isn’t a good option when you think about it long-term. Of all the items on your wedding to-do list, drafting a prenuptial agreement will arguably have the greatest impact on your future financial well-being. Using a highly regarded online prenup planning platform such as HelloPrenup is a way to save money and create a prenup that’s specifically drafted for you with the nuances of Ohio law in mind.
What are the legal requirements for a valid prenup in Ohio?
The Supreme Court of Ohio has established that prenuptial agreements must meet the following conditions in order to be valid and enforceable:
- The agreement must be in writing and signed
- The parties must voluntarily sign the prenup without fraud, duress, coercion, or overreaching
- There must be full financial disclosure of one another’s property and debt
- The terms must not promote or encourage divorce or profiteering from divorce (Fletcher v. Fletcher, (1994)).
- Language regarding spousal support must be fair and reasonable at the time of execution and must not be unconscionable at the time of divorce.
In the case Gross v. Gross, the Ohio Supreme Court held that if prenups follow the requirements listed above, they are not contrary to public policy. Regarding the requirement of full disclosure of financials, this obligation can be satisfied by attaching a list of assets, property, and liabilities to the prenup, or by demonstrating that full disclosure had been made by another method.
The bottom line on prenup lawyer requirements in Ohio
Ohio courts uphold prenups if they were in writing, signed voluntarily, there was full financial disclosure, the language does not promote divorce, and language related to spousal support was fair and reasonable at the time of signing and not unconscionable at the time of enforcement. And, although Ohio doesn’t require that you and your spouse hire attorneys, it is recommended. Having independent legal counsel helps ensure that the prenup is valid and enforceable and that each person’s rights are protected. If attorney fees are cost-prohibitive, you should both have at least enough time to consult with an attorney before signing your prenup. Courts like to see parties were given enough time to fully understand the agreement they’re signing.
With all of this information in mind, you now know more about prenuptial agreements than probably anyone you know! You’re one step closer to your wedding in the Buckeye State. Sidenote: How cool is it that the Ohio official state slogan is, “Ohio, the heart of it all”? Sounds like the perfect place for you and your fiancè to begin your life together. ♥️
Jourdan Stewart is Legal Operations Attorney at HelloPrenup, and a Texas licensed attorney. Jourdan is experienced in drafting prenuptial agreements, and her legal expertise extends to other aspects of family law, business law and entertainment law. Jourdan earned her law degree from Pepperdine University, her MBA from The Acton School of Business, and her BBA from Baylor University. Jourdan’s favorite aspect of legal practice is helping clients fully understand and achieve their goals. She finds great satisfaction in tailoring solutions to each client’s unique set of wants and needs. When she’s not practicing law, Jourdan can be found in nature with her two children and their dog, Stewey.
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