Under Ohio law, a prenuptial agreement must meet three important criteria:
- 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.
There are many reasons to have a prenuptial agreement, which do not necessarily contemplate divorce at the time of a marriage. It helps the parties know what property will be separate property so that decision is not ever left to a judge in a domestic proceeding. It also allows the parties to plan for their estate. This is particularly important for blended families with children from prior relationships. In Ohio, the surviving spouse statute is very favorable to surviving spouses and could leave a party's children from a prior marriage with virtually no inheritance.
What steps should I take to make sure a court would enforce my prenuptial agreement?
- Present the prenuptial agreement to your future spouse as far ahead of the wedding as possible so that it can be reviewed by them with their own lawyer.
- Make sure your future spouse has reviewed it with a lawyer. If he/she cannot afford a lawyer, give him/her sufficient funds to hire one. Recite in the agreement that this was done.
- Make sure that you accurately and fully disclose every asset and liability you have, including a value on each.
- If there are any clauses which might provide for a harsh result, such as "No matter how long the marriage lasts, neither party shall expect spousal support from the other upon termination of the marriage", that such clauses stand out from the rest of the text and are initialed by both parties.
The best practice is to consult with an attorney about the benefits and requirements of a prenuptial agreement. A prenuptial agreement can be used to protect both people to a prospective marriage, but there are several important legal requirements which must be included.
Lisa A. Wafer is an Associate Attorney with The Law Offices of Saia & Piatt, Inc. in Columbus, OH. Contact the firm to discuss your family law case and to learn about your legal options.