Prenuptial Agreements or Antenuptial Agreements

6 Things You Need to Know About Prenups (Prenuptial Agreements or Antenuptial Agreements) in Ohio

September 20, 2014

A prenuptial agreement, also be called an antenuptial agreement, or “prenup”, is a contract between two parties who are soon to be married. The usual purpose is to protect property rights. These agreements must be in writing. See Ohio Revised Code 1335.05.

1. It is best to draft with precise language that makes the intent of the parties clear. When the agreement includes waiving of rights provided by statute, such as the statutory right to “take against the will”, then the agreement should specifically reference with clear language what statutory rights are being waived by the agreement.

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2. It is important that the circumstances surrounding the execution of the agreement show that the agreement was signed voluntarily, with full knowledge, that both parties had time to consider the agreement, and both parties knew that they could consult an attorney to represent their interests. The best practices is to (if possible) require each party to have their own attorney. In addition, the prenuptial agreement should be signed well before the marriage date instead of surprising one party just prior to the wedding date. A Court may inquire if the party had time to read and consider the agreement, if the party had independent counsel, or if there was coercion or undue influence as part of considering whether there is a defense such that the agreement was unconscionable or there was overreaching.

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3. A court may inquire if there was full and fair disclosure of all assets and of the effect of the agreement. Good practice may include attaching an inventory of assets and the value of each asset to the agreement to provide full disclosure. This is an area where one party often resists – full disclosure. They just want a document that says something to the effect of “what is yours is yours and what is mine is mine” and to bypass disclosure. Full disclosure makes the document less subject to attack in a divorce.

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4. Ohio law gives a surviving spouse only four months to bring a legal action to contest an ante nuptial agreement after the death of his or her spouse. Ohio Revised Code 2106.22. Affirmative defenses such as fraud or duress must be put in the legal pleading.

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5. A Court may find certain provisions of the prenup to be unconscionable at the time of divorce. This may be due to unforeseen circumstances such as a large change in the assets of one party. A court may choose not to uphold provisions of the prenup that it finds unconscionable.

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6. Parties should be aware that modifications (postnuptial agreements) made after marriage which are more restrictive or harsh than the original agreement may be closely scrutinized by the Court.

Key cases on prenups in Ohio include:

Hook v. Hook

Gross v. Gross

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Need some help? We would be happy to schedule a consultation with you. Please give us a call, and one of our Prenuptial Agreement Attorneys will meet with you to discuss your case.

Virginia Cornwell is an Ohio State Bar Association Certified Family Relations Specialist.

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Ask an Ohio Family Lawyer: separate property, community property, marital property – what does it all mean?

January 31, 2012

Virginia Cornwell is an Ohio Family Lawyer in Columbus, Ohio and an Ohio State Bar Association Certified Family Relations Specialist. She helps clients throughout Ohio and accepts cases from all 88 Ohio Counties.

What is community property in Ohio? We get that question a lot from our divorce clients. The truth is, there is no community property in Ohio because Ohio is not a community property state. Ohio law uses the term “marital property”. Naturally, the next logical question would be “Okay, so what is considered marital property in Ohio?” The answer is simple. Everything is considered marital property in Ohio unless you can prove that it is separate property.

SEPARATE ASSETS

So what is separate property in Ohio? Ohio Revised Code 3107.171 governs property division during a divorce, legal separation or dissolution. (There is no property division in an annulment because the marriage is invalidated.) That statute defines separate property as being any real property (real estate) or personal property (every kind of property EXCEPT real estate) that a court finds to be one of these things:

An inheritance by one spouse
Any property that was acquired by one spouse before marriage
Passive income and appreciation from separate property. “Passive income” means income acquired other than as a result of the labor, monetary, or in-kind contribution of either spouse.
Any property acquired by one spouse after a decree of legal separation issued under section 3105.17 of the Revised Code;
Any property excluded by a valid antenuptial agreement (prenuptial, aka a “prenup”) ;
A personal injury award, (except for loss of marital earnings)
Any gift that is made after the marriage and is proven to have been given to only one spouse

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MARITAL ASSETS

So if property doesn’t fall under the category of separate property, then what is it? The answer is MARITAL PROPERTY. Ohio is not a community property state. Ohio law presumes everything is marital property until the party asserting the claim of separate property PROVES IT. If you cannot prove that something is separate property, then it is marital property, subject to division by the court in a divorce, dissolution or legal separation. The same law that defines separate property in Ohio defines marital property. Ohio Revised Code 3105.171 says that the following types of property are marital:

All property currently owned by either spouse, including, retirement benefits and deferred compensation, that was acquired by either during the marriage;
All interest that either spouse currently has in real or personal property, including retirement benefits and deferred compensation, that was acquired by either during the marriage;
All income and appreciation on separate property, due to the labor, monetary, or in-kind contribution of either spouse during the marriage;
“Marital property” does not include any separate property.

Sounds simple enough, doesn’t it? Not so fast. In our next article about marital and separate property we’ll talk about the burden of proving separate property, “tracing” separate property, and what happens when separate property is “transmuted”, or becomes untraceable.

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You may also be interested in some of our other divorce articles:

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Do you need a prenup? Antenuptial and Prenuptial Agreements in Ohio.

December 15, 2010

A Columbus Ohio Prenup Attorney article about Antenuptial Agreements and Prenuptial Agreements in Ohio.

Do you need a Prenuptial Agreement? The answer is – it depends. Prenuptial Agreements (also called Antenuptial Agreements, or “Prenups”) can be a valid part of planning for a long and successful marriage. In circumstances such as these, the security of knowing what may happen to your finances if the marriage is unsuccessful will allow each of the parties to enter the marriage with a common understanding regarding finances:

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Ohio Family Law Attorney Antenuptial Agreements

parties marry later in life,
have children from a prior relationship or marriage
have acquired significant assets or investments,
or own a business or practice which they would not want to go to their spouse in the event of death or termination of the marriage
have acquired a business, a practice or significant asset or investments with one or more partners, and you do not want the assets to be subject to division upon your death or the end of the marriage

Ohio Revised Code 3105.171 governs the division of marital property in a divorce, dissolution or legal separation. Pursuant to Ohio Revised Code 3105.171(A)(6)(v), real property (real estate) or personal property (almost anything BUT real estate) which is excluded from marital property by a valid Antenuptial Agreement is not part of the marital estate which is subject to division by the Court.

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Divorce Prenup Spousal Support Attorneys Columbus Ohio Another reason Prenuptial Agreements and Antenuptial Agreements are often necessary t is to limit exposure to spousal support obligations if the parties should divorce. However, the spousal support provisions of an Antenuptial Agreement must not be unconscionable, and conscionability is determined according to the facts and circumstances at the time the marriage ends, not by the facts and circumstances when the Prenuptial Agreement was made.

Franklin County Ohio Prenuptial Agreement Lawyer Pursuant to Ohio Revised Code 2106.22 the provisions of an antenuptial agreement are still valid upon the death of a party to the agreement, unless an action to set it aside is commenced within four months after the appointment of the Executor or Administrator of the estate of the decedent, or unless, within the four-month period, the validity of the agreement otherwise is attacked.

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Prenup Attorney in Ohio

For information about divorce you may be interested in a series of articles by a Columbus Ohio Divorce Lawyer and Columbus Ohio Divorce Attorney about the process and options for ending your marriage in Ohio, and about Ohio divorce l aws.

Several of the articles in the series can be seen here:

Part 1 (Conciliation or Legal Separation), Part 2 (Dissolution or Uncontested Divorce), Part 3 (Reasons to Choose Divorce), Part 4 (Restraining Orders),Part 5 (Where will you live?), Part 6 (Paper Work), Part 7 (Health Insurance),

In addition to the installments in the Divorce in Ohio Series (see links at top of the page), you may also find the following topics, which relate to divorce, to be helpful.

Adultery, Annulment, Alimony (Spousal Support), Best Interest of the Child, Child Custody, Child Custody Jurisdiction , Child Support (deviation), Child Support (how much), Child Support (how to pay), Child Support (lower), Child Support (myths), Child Support (resources), Child Support (sign up), Contempt, Dissolution, Divorce Basics, Divorce Myths, Foreclosure Mediation, Grandparents, Guardian ad Litem, House, How Long Your Divorce May Last, International Abduction, Legal Separation, Mediation, Moving, Packet of Forms vs. Getting a Lawyer, Shared Parenting,Temporary Orders, Temporary Orders Affidavits, Where to File for Divorce

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