Pre-Nuptial v. Post-Nuptial Agreements

Just about everyone has heard of a pre-nuptial agreement (“Prenup”) that allows a couple that is going to be married to decide what to do in the event of a divorce or the death of a spouse. Prenups are merely contracts to help protect your financial interests in the event that your future marriage ends. Post-nuptial agreements are the same as a pre-nuptial agreements, except in one regard. They are contracts between spouses made after the marriage.

Prohibition in Ohio

For many years, Ohio has prohibited post-nuptial agreements pursuant to Ohio Revised Code § 3103.06. Unless they legally separate, married people are prohibited from contracting with each other no matter how fair or reasonable the agreement may be. This prohibition includes amending an existing pre-nuptial agreement regardless of how old that pre-nuptial may be or whether any changed circumstances may exist. Under existing law, spouses would be stuck with an outdated agreement regardless of any errors or ambiguities that it may contain.

Ohio is one of only five states in the country that currently disallows postnuptial agreements. While Ohio has long been a trail blazer in modernizing its laws in many areas, it is in the proverbial “dark ages” with regard to postnuptial agreements. This aversion to modernizing its laws on post-nuptial agreements is perhaps based on a misguided assumption that such agreements encourage divorce. However, that may be changing. There is a trend to recognize the validity of such agreements.

Change in the Future

The Ohio State Bar Association’s Estate Planning, Trust, and Probate Law section has formed a special committee which is currently in the process of proposing changes to the current law in Ohio. If and when approved, the strict prohibition against postnuptial agreements will be a thing of the past. Of course, such agreements would be required to be in writing and subject to a higher degree of good faith and disclosure.

If you have questions about pre-nuptial or post-nuptial agreements or any issues involving a divorce, contact the family law lawyers at Wuliger & Wuliger at (216) 781-7777.

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