Ohio Prenuptial Agreement
You’re getting hitched in the buckeye state and home of the Roller Coaster Capital of the World, and you’re wondering what to include in your prenup so it withstands the twist, turns and dives of life’s wild roller coaster ride. Here’s some information you need to know about Ohio prenups, the legal jargon that is used, and the terminology you’ll want to know.
Ohio Prenuptial Agreements
Generally speaking, the definition of a prenuptial, premarital, antenuptial agreement (yes, those are three names for the same thing) is a contract drafted between two soon-to-be spouses that is not effective until marriage. More specifically, a Prenuptial Agreement or Antenuptial Agreement (both terms are used in the state of Ohio) is again, a legal contract that is drafted between two parties prior to getting married, and in Ohio, like most states, is effective upon marriage. There are no statutes or codified laws that explicitly govern Ohio prenups. However, Ohio courts have weighed in to determine the parameters and requirements for a legally binding prenuptial agreement in Ohio. The terms of a prenup agreement may outline the rights to property acquired prior to, during, or after marriage – including but not limited to, assets, debt, inheritance, gifts, real estate, income and earnings, as well as future interests. A prenup agreement will also specify what will happen to this property while married and in the event of separation, dissolution, or divorce.
Your Premarital Agreement can also contract to the rights of spousal support, including the waiver of support, but cannot contract to child support nor custody. If you intend on waiving or specifying how spousal support may be paid in the future, make sure to read the details below. Ohio courts have ruled on what makes an Ohio prenuptial agreement enforceable.
What to include in a valid Ohio Prenup
For an Ohio prenup to be considered valid, you should consider the following pursuant to Ohio law:
- The contract must be in writing
- The terms must be lawful
- The terms do not promote or encourage divorce or profiteering by divorce
- The terms must also be fair, and the deal must hold up over time, as it must be “conscionable” when and if the prenuptial agreement is enforced
- Signatures from both parties (HelloPrenup recommends initialing each page, and having your signatures notarized!)
- Signed freely and voluntarily (without fraud, duress, intimidation, coercion, overreaching, etc.)
- There should be ample time in between receipt of the final agreement and date of signing. This is to allow enough time to retain counsel if you would like legal advice or representation and to contemplate the terms before signing.
- Full disclosure of all financial assets and income (each spouse must be fully and accurately apprised of the nature, value, and extent of the other’s property) *Do not skimp on this*
- The terms of the prenuptial agreement preempt any Ohio divorce or dissolution laws
- If the agreement provides for spousal support in any way, it may be challenged based on a change in circumstances of one of the parties to the marriage. See below to read the fine print, straight from the source.
What to exclude from your Ohio prenup
To make sure that your prenup comports with Ohio law, make sure not to include…
- Child custody or child support
- Excluding the right to counsel
- Incentive to commit illegal acts
- Incentive for divorce
- Unfair, unjust, or deceptive terms
- Outrageous conditions favoring one side
- Unconscionable spousal support provisions
- Clauses that are not financial in nature, like demanding that one spouse loses weight or changes their appearance
Ohio courts will not enforce verbal prenuptial agreements. If you and your boo want the terms of your prenup to be enforceable if needed in the future, you must have a written and signed. Hello Prenup! recommends it be notarized as well.
Statutes & terms to understand for an Ohio Prenup
*Before diving into the deep end, let’s go through some terminology and phrases that will be used in your prenup – that way, you don’t go cross-eyed trying to decipher the legal jargon and miss something.
Ohio Premarital Agreement law
If you would like to get a prenuptial agreement in Ohio, you must comply with the following:
- The agreement must be entered into voluntarily and cannot be unconscionable;
- The agreement must be signed
- Full disclosure of all financial assets and income (this is important!)
- If a party is waiving spousal support or agreeing to any provision involving spousal support, they must contemplate a change in a standard of living during the marriage at the time of making the agreement.
Unconscionability of a provision for maintenance and sustenance contained in an antenuptial agreement may be found in several circumstances, such as extreme health problems; change in employability, changed circumstances in the standard of living during the marriage, etc., where a return to the prior living standard would cause a hardship upon a spouse. Vanderbilt v. Vanderbilt, 2014 Ohio 3652 (Ohio Ct. App. 2014).
Cases that shaped the enforcement of Ohio prenuptial agreements
Ohio prenups have been upheld as far back as 1846. Of course, things were a lot different in the 19th century. Back then, antenuptial agreements were entered into in contemplation of death, not divorce. Public policy supported the validity of such antenuptial agreements (except in cases of fraud, duress, or undue influence) as promotion of domestic tranquility. It was reasoned that such agreements preserved a spouse’s interest in his or her estate and that such agreements resulted in fewer disputes about property after a spouse died. This reassurance presupposed a lesser threat to marital bliss.
It was not until Gross v. Gross, 11 Ohio St.3d 99 (1984), nearly 140 years later, that the Ohio Supreme Court considered the validity of such an agreement upon divorce. Gross recognized that in light of the modern realties, i.e. increases in divorce and the resulting subsequent marriages by spouses that may have already acquired significant assets and/or children, validating such agreements will in fact promote marriage, rather than to encourage divorce.
The current state of Ohio law, then, is that antenuptial agreements, provided they meet certain substantive requirements, are valid whether they are in contemplation of death or divorce.
Requirements for a Valid Ohio Prenup: Gross v. Gross
In 1984, Gross v. Gross resolved three major issues involved in antenuptial contracts with provisions for divorce.
First, the Court set forth three requirements for valid and enforceable antenuptial agreements:
- It must have been entered into freely without fraud, duress, coercion or overreaching;
- There must have been a full disclosure, or full knowledge, and understanding, of the nature, value and extent of the prospective spouse’s property; and
- The terms do not promote or encourage divorce or profiteering by divorce.
The Court noted that the second condition would be satisfied by attaching a list of assets to the agreement, or by showing that full disclosure had been made by other means.
Second, the court held that these agreements may be enforced by the party at fault in the divorce in the absence of an express provision to the contrary.
Last, the court held that although a court cannot modify property allocation provisions in these agreements at the time of divorce, the trial court can modify the alimony provisions if the provisions are unconscionable at the time of divorce because of changed circumstances.
Gross also holds that a valid antenuptial agreement must comply with the contract law requirements of disclosure and lack of fraud, duress, coercion, and overreaching.
Further, if a prenuptial agreement has outrageous provisions that favor one side, this can discredit the entire agreement. (For example, a provision requiring a spouse to maintain a certain weight would be considered outrageous.)
Divorce Statute: Divorce or Dissolution of Marriage?
Both terms are used in Ohio, but they mean different things.
Dissolution of Marriage. In Ohio, a dissolution of marriage is an action where the parties mutually agree to terminate their marriage. Neither party must prove grounds to end a marriage by dissolution. The parties must agree on all terms when dissolving the marriage (not the court), and if so, they may jointly go to the Court and request a dissolution.
Divorce. Divorce is a civil action to end a marriage. In Ohio, divorce occurs when one party decides to end the marriage and the other party doesn’t. This is known as a “fault” divorce. In the case of divorce, a party cannot prevent their spouse from obtaining a divorce, although it can sometimes be delayed. This is when the court decides how property will be divided and whether spousal support should be granted, guided by Ohio Revised Code § 3105.171.
Below we outline some more specifics about divorce in Ohio. Although you may never need to use this information, we think it is important to understand. The more you know…
The following excerpt is taken from the Ohio Revised Code §3105.01:
Ohio divorce based on fault.
To pursue a fault-based divorce in the State of Ohio, you must establish grounds. The following are grounds for a fault-based divorce in Ohio:
- Either party was married to someone else at the time of or during the marriage
- Willful absence of the adverse party for one year
- Extreme cruelty
- Fraudulent contract
- Any gross neglect of duty
- Habitual drunkenness
- The adverse party is imprisoned at the time of the filing of the complaint
- Procurement of a divorce outside this state
- Both parties have lived separately and apart for at least one year
- Incompatibility, unless denied by either party (if one person believes the marriage can be saved, then a divorce cannot be granted based on incompatibility)
>> For the entire fine print, review Ohio Revised Code §3105.01
How to end a marriage in Ohio
The 4 ways that a couple can legally end a marriage is through divorce, dissolution, legal separation and annulment. Only one party needs to begin the process of ending a marriage (but don’t get us wrong, it takes two to make a marriage work!). If one party wants to divorce the other party, it is within their sole right to do so, but the other non-participating party does not have to agree to begin the process.
If a divorce proceeding has already begun, and parties have chosen to cooperate with each other, the action may be converted to dissolution by bringing a motion in front of the court for conversion of a divorce action into an action for dissolution of marriage. Ohio Revised Code § 3105.08
We talked about divorce and dissolution earlier, but what about a legal (not religious) annulment? The Ohio Revised Code 3105.31(A-F), Cause for Annulment, lists six (6) ways an annulment can be granted. They are:
- If one of the spouses was under the age of 18 at the time of the marriage – unless that party cohabites with the other reaching the age of 18.
- If one of the parties was married to someone else at the time marriage.
- If at the time of the marriage, it is deemed that the party was mentally
- If the consent of either party was obtained by fraud. Unless afterwards with full knowledge of the facts constituting the fraud, they then cohabitated with each other as husband and wife.
- If the marriage between the parties was never consummated although otherwise valid.
>> For the entire fine print, review Ohio Revised Code §3105.31
Each state has residency requirements that must be fulfilled before you can divorce in that state. In Ohio, you or your spouse must have been a resident of Ohio for at least six months prior to filing for dissolution.
Official term for property not considered part of the marital estate
Separate property in Ohio by default is property:
owned before the date of marriage,
- acquired after the date of legal separation,
- acquired during the marriage by way of inheritance or gift (that is proven by clear and convincing evidence to have been given to only one spouse)
- compensation to one spouse for that spouse’s personal injury, except for loss of earnings during the marriage and compensation for expenses paid from marital assets
If this is not to your liking, you’ll need to specify it clearly in a legal document (such as a prenup) otherwise.
>> For fine print regarding separate property, review Ohio Revised Code § 3105.171
Official term for Spousal Support (also commonly known as Alimony) Upon Divorce, Dissolution of the Marriage or Legal Separation
Ohio offers temporary or permanent spousal support. An Ohio prenuptial agreement that addresses spousal support, unlike property division, “must meet the additional test of conscionability at the time of the divorce or separation,” according to Grove v. Grove, as we discussed above.
>> For the fine print on Ohio Spousal Support, review Ohio Revised Code
Ok, so now how can you use HelloPrenup to create your prenup?! Many engaged Ohio love birds choose to use the HelloPrenup platform to negotiate and draft their prenup, and then choose to seek legal counsel prior to signing.
An Important Case Relating to Ohio Spousal Support
Vanderbilt v. Vanderbilt, 2014 Ohio 3652 (Ohio Ct. App. 2014)
The Vanderbilt couple married after already establishing a long-term relationship. Immediately before they married, the couple executed a prenuptial agreement that governed the division of their property and included a mutual waiver of spousal support in the event of divorce. In anticipation of marriage, the couple also designed their dream home, which they built and furnished to their specifications early in the marriage. Throughout their relationship, the wife worked full-time for a county agency and owned a modest home that she shared with the husband. The wife maintained her employment before and throughout the marriage, and her job provided a steady level of income, no-cost health benefits for her, and a public employee pension. During the marriage, the wife used her earnings to fund the couple’s living expenses. She supplemented her stream of income with approximately $60,000 that resulted from the sale of her premarital home, from which she paid for a portion of her children’s college education, an extra automobile, and various living expenses.
The couple enjoyed a higher standard of living due to the husband’s income. When the couple went to divorce, the wife challenged the prenuptial agreement, successfully arguing that the waiver of spousal support in the prenuptial agreement was unconscionable and that a return to her prior living standard would be a hardship. The lower court agreed and awarded her $3500/month in spousal support. The husband appealed on the basis that the couple had waived their rights to spousal support in their prenuptial agreement. The wife argued that the terms of the prenup were unconscionable. The appellate court reversed the lower court, upholding the mutual waiver of spousal support, noting that while a change in the wife’s standard of living changed over the course of the couple’s long relationship, the change occurred before the marriage – not just during the marriage. The court presumed that a change in a standard of living in the event of divorce would have been contemplated at the time of the agreement.
In its conscionability analysis, the Vanderbilt court considered the statutory spousal support provisions that govern the determination of spousal support award under R.C. 3105.18(C)(1). The trial court must consider:
- the income, assets, and liabilities of the parties;
- their relative earning capacities,
- educational attainments,
- retirement benefits;
- the ages and health of the parties;
- the duration of the marriage and the parties’ standard of living;
- the contribution of one spouse to the education or training of the other and, conversely,
- the resources necessary for one spouse to obtain appropriate employment;
- and whether either party lost employment capacity as a result of marital responsibilities. R.C. 3105.18(C)(1).
This list of factors is nonexclusive. See R.C. 3105.18(C)(1)(n). The critical factor in this determination, however, is whether there are “changed circumstances which render the provisions unconscionable as to one or the other at the time of the divorce[.]”
This analysis presumes that the changed circumstances would not have been contemplated at the time of the agreement. Unconscionability of a provision for maintenance and sustenance contained in an antenuptial agreement may be found in several circumstances, such as extreme health problems; change in employability, changed circumstances in the standard of living during the marriage, etc., where a return to the prior living standard would cause a hardship upon a spouse.
This determination does not go to the validity of the prenuptial agreement itself, but to the question of whether spousal support provisions may be enforced at the time of the divorce.
For those of you love birds who cohabitate prior to tying the knot, be sure to contemplate any potential change in standard of living that may occur during the marriage when adding any spousal support terms to your prenup.
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