When you get married, you invite the law into your personal life. Your state's statutes govern your responsibilities to each other, and you can't officially part ways without a court order that addresses those responsibilities. Contractual agreements made by you and your spouse can usually override the law, however. Ohio's legislature includes a specific provision that removes property from the marital estate – that which is subject to division in a divorce – if you address the property in a valid prenuptial agreement.
A prenuptial agreement spells out what you want to happen to your assets – both marital property and that which you own separately – in the event of divorce or death. In Ohio, your separate property is anything you acquired before you got married, or gifts made to you personally while you were married. It includes inheritances made solely to you, and passive income produced by any of this property. Virtually everything else is marital property. If you divorce without a prenuptial agreement, an Ohio court will equitably distribute your marital property according to law. This means a judge will start with the presumption that you and your spouse should each receive half, but he can then take certain factors into consideration and give one of you more than the other.
You can pick and choose what you want to include in your prenuptial agreement, but only up to a point. If you don't address certain items of your property, the court will determine whether it's separate or marital and deal with it accordingly. You must disclose the existence of your separate property in your agreement, however, even if you don't say how you want it dealt with. The law requires that you tell your future spouse the full extent of your property and debts, and you must attach lists to your prenuptial document. If you fail to do so, your prenup may not be enforceable in the event you divorce. The court can assume that your spouse might not have signed the agreement or agreed to certain terms if she'd known the full extent of your wealth.
Terms of Agreement
In addition to determining how you want to deal with your separate property, your prenup can legally address other issues as well. You can decide how you want to treat marital assets. You can address issues of alimony, such as when and if one of you will pay it to the other. You can even go so far as to state who pays for what during your marriage. Ohio law does not allow you to address in advance any children you might have together, however. You can't decide terms for child support or custody.
Ohio courts probably won't uphold a prenuptial agreement made the night before your wedding. Both you and your spouse must have time to fully digest its terms and to have an attorney review it before you sign it. You can't use the same lawyer because you're legal adversaries in the agreement – your best interests are separate from that of your spouse. If a lawyer represented both of you, he would have to look out for one spouse at the expense of the other.
Ohio's family court can enforce aspects of your prenup that address divorce, but it doesn't have jurisdiction over other issues. For example, your spouse might waive her right to inherit from you in the event of your death. This issue falls to the probate court, so family court can't address the provision. Even with divorce issues, family court won't uphold your agreement if the judge finds it to be unconscionable or grossly unfair. The court bases your agreement's fairness on the circumstances that exist at the time of your divorce, not when you signed it. For example, you might waive alimony but, during the marriage, you become physically incapacitated and unable to support yourself. In this case, your waiver of alimony would not be fair.
- Ohio State Bar Association
- Phyllis G. Bossin & Associates: Prenuptial Agreements
- Law Offices of Virginia C. Cornwell: Do You Need a Prenup? Antenuptial and Prenuptial Agreements in Ohio
- Legal Information Institute: Marriage
- Law Offices of Virginia C. Cornwell: Ask an Ohio Family Lawyer – Separate Property, Community Property, Marital Property – What Does it all Mean?
- Phyllis G. Bossin & Associates: Family Law FAQs
- Creatas/Creatas/Getty Images