Prenuptial & Postnuptial Agreements

Prenuptial Agreements & Postnuptial Agreements

We’ve all heard that “almost half” of all marriages in the United States end in divorce. Okay, but are the statistics the same for first marriages as they are for subsequent marriages? Recent studies show that 67% of second marriages end in divorce and 74% of third marriages end in divorce. Perhaps even more surprising is that the average duration of a second or third marriage which ends in divorce is only about seven years.

Prenuptial Agreements (those entered into before marriage) have long been enforceable in Ohio and were upheld by Courts even before the Civil War. In those days, prenuptial agreements were typically created in contemplation of death instead of divorce and the agreements were widely considered to promote “domestic tranquility” between spouses. The primary drawback, however, was that once the parties married, the prenuptial agreement could not be modified and no new agreements could be created.

Effective March 23, 2023, Ohio passed a much-anticipated law that allows married couples to modify their existing prenuptial agreements and to create postnuptial agreements (those entered into after marriage) even when no prenuptial agreement existed beforehand. As a result, the use of prenuptial agreements and postnuptial agreements are expanding rapidly in both the family law realm and as a valuable estate planning tool for families.

Christopher M. Alexander has helped individuals draft prenuptial agreements for 25 years. If you need a skilled and experienced estate planning attorney to guide you through drafting or modifying a prenuptial agreement or drafting a postnuptial agreement, contact Christopher M. Alexander, Esq. at (513) 228–1100 or chris@alexander-legal.com.

“Pre-nups” Aren’t Just for the Rich Anymore

As the benefits of prenuptial agreements and postnuptial agreements become more well-known, people from all walks of life are taking advantage of their uses, consider these:

To make a financial plan and goals for saving during the marriage
To protect the financial and inheritance rights of any children or grandchildren from a previous marriage
To protect a business in the event of a divorce
To protect one spouse from the debt of the other spouse
To protect the financial interests of elderly people
To protect the financial interests of those entering subsequent marriages
To avoid litigation if you divorce

Postnuptial agreements can also be useful to create agreements within a marriage such as each spouse’s obligation to pay living expenses and responsibility for debt. For example, what if one spouse incurs significant debt for higher education over the objection of the other spouse? A postnuptial agreement can be created to clarify that the loan payments will be paid solely by the spouse receiving the education and his/her estate, not by the marriage.

Will My Prenuptial Agreement or

Postnuptial Agreement Hold Up in Court

Under the new law in Ohio, modifications to prenuptial agreements and postnuptial agreements will be valid and enforceable provided:

The agreement is in writing and signed by both spouses.
The agreement is entered into freely without fraud, duress, coercion or overreaching.
There was full disclosure, or full knowledge, and understanding of the nature, value and extent of the property of both spouses.
The terms do not promote or encourage divorce or profiteering from divorce.

To ensure the validity of a prenuptial agreement or a postnuptial agreement, full and complete disclosure is paramount. A proper prenuptial agreement or postnuptial agreement should include an inventory detailing both spouses’ assets, each asset’s value, and the source of all valuations. Failure to provide full and complete disclosure will often invalidate the agreement.

In addition to failing to provide full and complete disclosure, there are several types of prenuptial agreement clauses that courts have consistently invalidated. This includes anything related to child custody or child support, provisions excluding either spouses’ right to counsel, unconscionable spousal support terms, and unusual clauses such as those requiring a spouse to maintain a certain hair color or levying penalties for a spouse who gains weight during the marriage.