Did you know that the Buckeye State is the home of the roller coaster capital of the world? (Hey, Cedar Point!). Well, in anticipation of all the ups, downs, twists, and turns that marriage can throw at you, we’ve compiled some useful information (and a few hacks!) to help you make your prenup rock solid. Let’s jump in!
Prenuptial Agreements in Ohio
Prenuptial agreements (also called antenuptial agreements in Ohio) are contracts that are entered into by couples who intend to marry. While the agreement is prepared before the marriage, it springs to life as soon as the marriage is finalized. In Ohio, there are no codified laws that govern prenuptial agreements. So, where can you look for guidance when creating your prenup? Well, the courts in Ohio have stepped in to lay out the requirements for creating a valid and enforceable prenup. Big picture, your prenup can detail which property you and your spouse would like to be considered marital or non-marital property and how you would like this property to be divided in the event of divorce. Alimony is another common subject addressed in prenuptial agreements. Importantly, you cannot contract to child support or custody. These are issues that are ultimately decided by the court.
Ohio Premarital Agreement Law
For your prenup to be valid in Ohio, you need to comply with the following requirements:
- The contract must be signed by both parties;
- The agreement must be entered voluntarily (no duress, undue influence, fraud);
- The agreement cannot contain unconscionable provisions;
- Full disclosure of all financial assets and income is required (this is really important!);
- For spousal support, if one spouse waives their right alimony, they must, at the time of entering into the agreement, anticipate and contemplate a change in the standard of living during the marriage
What makes a prenuptial agreement unconscionable? This can happen when there are changed circumstances in the standard of living during the marriage, changes in employability, severe health conditions, ect. In these cases, the court may determine that based on the change in circumstances, it would be difficult for one spouse to return to the standard of living established during the marriage. Vanderbilt v. Vanderbilt, 2014 Ohio 3652 (Ohio Ct. App. 2014).
What to include in a valid Ohio Prenup
In order for your prenup to be valid and enforceable, you need to meet the following requirements:
- The contract must be in writing;
- The terms must be lawful;
- The terms can’t promote or encourage divorce or profiteering by divorce;
- The terms must be fair both when the agreement is drafted and when enforcement is sought (i.e. it needs to hold up over time);
- Both parties need to sign (HelloPrenup recommends initialing each page and having your signatures notarized!);
- It needs to be signed freely and voluntarily (no fraud, intimidation, duress, coercion, overreaching, etc.);
- Ample time between receiving the final draft and actually signing the agreement. This is intended to allow both parties to retain counsel as well as to prevent any extra pressure;
- Full financial disclosure of all assets and income (the disclosure needs to apprise the other spouse of the nature, value, and extent of the other’s property) *Do not skimp on this*.
Be aware that the terms of the prenuptial agreement preempt any Ohio divorce or dissolution laws
What to exclude from your Ohio prenup
The following cannot be included in your prenup…
- Child custody or child support;
- Provisions 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. (i.e. provisions demanding that one spouse loses weight or changes their appearance)
The origins of Ohio prenups
Did you know that prenups have been used in Ohio dating back to 1846? Interestingly, in those times, prenups were created in contemplation of a spouse’s death versus divorce. The agreements were considered to promote “domestic tranquility”. They preserved a spouse’s interest in the deceased spouse’s estate and made the process of death much smoother.
Fast forward 140 years to the case of Gross v. Gross, 11 Ohio St.3d 99 (1984). It was in this case that the Ohio Supreme Court first evaluated the validity of a prenuptial agreement in the context of divorce proceedings. The agreements were finally determined to promote healthy, successful marriages versus encouraging divorce. In reaching this conclusion, the court considered the increase in the number of divorces and the fact that many people were entering into their second marriages with children and significant wealth acquired during the first marriage. So, whether created in contemplation of divorce or death, prenuptial agreements are considered valid in Ohio (as long as they meet all of the other requirements!).
Requirements for a Valid Ohio Prenup: Gross v. Gross
Let’s take a closer look at the Gross case! First, the Court set forth three requirements for valid and enforceable antenuptial agreements:
- The agreement must have been entered into freely and voluntarily (without fraud, duress, coercion or overreaching);
- There must have been a full financial disclosure. This includes disclosing the nature, value, and extent of the spouse’s assets. Full knowledge of the non-disclosing spouse will also suffice.
- The terms cannot encourage divorce or profiteering by divorce.
Regarding enforcement of these agreements during divorce, the court determined that not only may they be enforced, but they may be enforced by an at-fault party as long as the agreement itself isn’t prohibitive.
The court also held that while courts cannot alter prenuptial provisions pertaining to property division, they can modify alimony provisions in the event that the amount of alimony is insufficient or “unconscionable” at the time of divorce due to changes in circumstances.
Finally, the court will not enforce outrageous provisions. (For example, requiring a spouse to maintain a certain weight). In fact, these “outrageous” provisions can discredit the entire prenup.
The official term for property not considered part of the marital estate is separate property. This includes property:
- owned before marriage,
- acquired after the date of “legal separation”,
- received via inheritance or gift (it must be proven by clear and convincing evidence that it was only given to one spouse)
- personal injury payouts, except those which compensate for loss of earnings during the marriage and compensation for expenses paid from marital assets
>> For fine print regarding separate property, review Ohio Revised Code § 3105.171
This is the official term in Ohio (also commonly known as alimony or spousal maintenance)
The options for spousal support in Ohio include temporary or permanent spousal support. Provisions related to spousal support in prenups are treated a little differently than those dealing with property division. In order for spousal support provisions to be enforceable, they, “must meet the additional test of conscionability at the time of the divorce or separation,” according to Gross v. Gross (discussed above).
For the fine print on Ohio Spousal Support, review Ohio Revised CodeSection 3105.18
Vanderbilt v. Vanderbilt, 2014 Ohio 3652 (Ohio Ct. App. 2014)
Prior to marrying, the Vanderbilt couple had a long term relationship. During that time the wife worked a solid job and owned a modest home which she shared with her soon-to-be husband. Prior to the wedding, the couple designed and built their dream home. While the husband was much wealthier than the wife, she continued working during the marriage. However, the husband’s income definitely provided a higher standard of living for the couple.
Sadly, the couple divorced years down the road. Prior to marriage, they entered into a prenuptial agreement in which they both waived their right to spousal support. However, during the divorce proceedings, the wife challenged the spousal support provision as unconscionable based on the change of financial circumstances and heightened standard of living experienced during the marriage. She argued that a return to her former standard of living would be a hardship. Ultimately, the court disagreed. While the wife’s standard of living changed during the relationship, much of this occurred prior to the marriage (ex. building the dream home before wedding). As a result, the wife should have anticipated the standard of living change at the time she entered into the agreement. In order for a spousal support provision to be unconscionable, the party can’t have been able to contemplate the change of circumstances at the time they entered into the agreement. Unfortunately, the wife was out of luck.
Cohabitating couples should keep this in mind when executing their prenuptial agreements!
How to end a marriage in Ohio
There are four options for spouses who want to end their marriage: divorce, dissolution, legal separation, and annulment.
Divorce v. Dissolution of Marriage
While they may commonly be used interchangeably, in Ohio, the terms mean different things.
Dissolution of Marriage. This is a proceeding where the spouses both agree to end their marriage. This requires both parties to be in agreement as to all terms of the dissolution. If they are in agreement, they can jointly request dissolution and don’t need to prove or establish any grounds to end the marriage.
Divorce. It only takes one spouse to get the divorce proceedings started in Ohio. Specifically, a “fault divorce” occurs when one party decides to end the marriage and the other does not. One of the spouses cannot prevent the divorce from occurring (though they can delay the process). Also, if one spouse initiates divorce proceedings and then down the road, the couple agrees on everything, the divorce can be converted into a dissolution proceeding.
We’ll dive a little deeper into divorce below. While you may never need to use this information, understanding how divorce/dissolution works will help you while drafting your prenup.
Ohio divorce based on fault.
In order to obtain a divorce (end your marriage) in Ohio, you must provide a valid reason for seeking divorce. The following are the available grounds in a fault-based divorce:
- Willful absence of one spouse for one year
- Extreme cruelty
- Gross neglect of duty
- One of the parties was married to someone else at the time of or during the marriage
- Fraudulent contract
- Habitual drunkenness
- The adverse party is imprisoned at the time of the filing of the divorce complaint
- Parties obtained an out of state divorce
- The spouses have lived separately for one year
- Incompatibility, but if one spouse believes the marriage can be saved, then a divorce cannot be granted based on this ground
>> For the entire fine print, review Ohio Revised Code §3105.01
An annulment is a form of separation where it is as if the marriage never occurred. There are six grounds for an annulment:
- One of the spouses was under 18
- One of the parties was already married at the time of the marriage
- One of the parties was mentally infirm at the time of the marriage
- The consent to marriage was obtained by fraud (however, this can be cured after marriage if the party obtains full knowledge and continues cohabitating as spouses)
- The marriage between the parties was never consummated
>> For the entire fine print, review Ohio Revised Code §3105.31
In Ohio, you or your spouse must have been a resident of Ohio for at least six months prior to filing for divorce or dissolution.