An Ohio prenuptial agreement outlines future spouses’ property and financial arrangements, detailing asset distribution if the marriage ends. Both parties must fully disclose their assets and debts before drafting terms that cover property division, spousal support, alimony, and inheritance rights upon divorce, separation, or death.
Legal Considerations
Marriage Laws:
- § 31001.01 – Validity
- § 3101.04 – Consent to marriage
- § 3101.08 – Solemnization
- § 3105.12 – Common law marriage
Divorce Statutes:
- § 2323.311 – Request for a fee waiver
- § 2701.10 – Allows civil cases to be assigned to retired judges for adjudication.
- § 3105.01 – Specifies the grounds required for filing a divorce, which must be included in the initial complaint.
- § 3105.03 – Requires the plaintiff in divorce actions to have been a resident of Ohio for at least six months before filing.
- § 3105.04 – The residency of the spouse (defendant) in Ohio is not necessary for filing for divorce.
- § 3105.06 – If the spouse’s location is unknown, the case must be announced through public notice as per Civil Procedure Rules.
- § 3105.17 – Either spouse can initiate a divorce, and the responding spouse can file a counterclaim. Divorce grounds are as listed in ORC 3105.01. The procedure for filing a counterclaim is available
- § 3105.171 – During divorce proceedings, the court will classify assets as either marital or separate property.
Case Law:
- Vanderbilt v. Vanderbilt, 2013-Ohio-1222
- “In Ohio, prenuptial agreements that govern the disposition of property upon divorce are valid “(1) if they have been entered into freely without fraud, duress, coercion, or overreaching; (2) if there was full disclosure, or full knowledge and understanding of the nature, value, and extent of the prospective spouse’s property; and (3) if the terms do not promote or encourage divorce or profiteering by divorce.”
- Gross v. Gross, 11 Ohio St.3d 99 (1984)
- “These agreements may include provisions concerning the disposition or devolution of property and payments for sustenance upon the death of one of the spouses; provisions for the distribution of property and the sustenance or maintenance of one or other of the spouses, most usually the wife, upon separation or divorce; or a combination of all of these concerns between the parties.”
Signing Requirements: The agreement must be in writing, signed by both parties and preferably notarized (§ 1335.05).
Dividing Property: Dividing property during a divorce is based on equitable division. This means that the starting assumption for the judge is to split property equally between the spouses. However, the judge will consider each spouse’s arguments for why an alternative distribution may be fairer (§ 3105.171).
Valid Ohio Prenuptial Agreement Requirements
To ensure your Ohio prenuptial agreement is valid and enforceable, adhere to the following criteria:
- Written Contract: The agreement must be documented in writing.
- Lawful Terms: All terms within the agreement must be legal.
- Fairness: The terms should be fair at the time of creation and enforcement, not promoting or benefiting from divorce.
- Mutual Consent: Both parties must sign the agreement freely and voluntarily, without any form of pressure or deceit. Initialing each page and notarization are recommended.
- Sufficient Time: Parties should have adequate time between receiving the final draft and signing, allowing for legal counsel consultation.
- Full Financial Disclosure: Complete disclosure of all assets and income is mandatory, providing a clear understanding of each party’s financial situation.
Note: The prenup’s terms take precedence over Ohio’s divorce or dissolution laws.
Exclusions from Ohio Prenuptial Agreements
Certain items cannot be included in your Ohio prenup:
- Child-Related Matters: Child custody or support arrangements.
- Right to Counsel: Provisions that deny the right to legal representation.
- Illegal Incentives: Encouragement of illegal activities.
- Divorce Incentives: Any incentives for divorce.
- Unfair Terms: Terms that are deceptive, unjust, or extremely one-sided.
- Unreasonable Support Conditions: Unconscionable conditions related to spousal support.
- Non-Financial Clauses: Provisions unrelated to financial matters, such as personal appearance changes.
