You’re getting hitched in the buckeye state and home of the Roller Coaster Capital of the World, and you’re wondering what to include in your prenup so it withstands the twist, turns and dives of life’s wild roller coaster ride. Here’s some information you need to know about Ohio prenups, the legal jargon that is used, and the terminology you’ll want to know.
Generally speaking, the definition of a prenuptial, premarital, antenuptial agreement (yes, those are three names for the same thing) is a contract drafted between two soon-to-be spouses that is not effective until marriage. More specifically, a Prenuptial Agreement or Antenuptial Agreement (both terms are used in the state of Ohio) is again, a legal contract that is drafted between two parties prior to getting married, and in Ohio, like most states, is effective upon marriage. There are no statutes or codified laws that explicitly govern Ohio prenups. However, Ohio courts have weighed in to determine the parameters and requirements for a legally binding prenuptial agreement in Ohio. The terms of a prenup agreement may outline the rights to property acquired prior to, during, or after marriage – including but not limited to, assets, debt, inheritance, gifts, real estate, income and earnings, as well as future interests. A prenup agreement will also specify what will happen to this property while married and in the event of separation, dissolution, or divorce.
Your Premarital Agreement can also contract to the rights of spousal support, including the waiver of support, but cannot contract to child support nor custody. If you intend on waiving or specifying how spousal support may be paid in the future, make sure to read the details below. Ohio courts have ruled on what makes an Ohio prenuptial agreement enforceable.
For an Ohio prenup to be considered valid, you should consider the following pursuant to Ohio law:
To make sure that your prenup comports with Ohio law, make sure not to include…
Ohio courts will not enforce verbal prenuptial agreements. If you and your boo want the terms of your prenup to be enforceable if needed in the future, you must have a written and signed. Hello Prenup! recommends it be notarized as well.
Create your free account now.
*Before diving into the deep end, let’s go through some terminology and phrases that will be used in your prenup – that way, you don’t go cross-eyed trying to decipher the legal jargon and miss something.
If you would like to get a prenuptial agreement in Ohio, you must comply with the following:
Unconscionability of a provision for maintenance and sustenance contained in an antenuptial agreement may be found in several circumstances, such as extreme health problems; change in employability, changed circumstances in the standard of living during the marriage, etc., where a return to the prior living standard would cause a hardship upon a spouse. Vanderbilt v. Vanderbilt , 2014 Ohio 3652 (Ohio Ct. App. 2014).
Ohio prenups have been upheld as far back as 1846. Of course, things were a lot different in the 19 th century. Back then, antenuptial agreements were entered into in contemplation of death, not divorce. Public policy supported the validity of such antenuptial agreements (except in cases of fraud, duress, or undue influence) as promotion of domestic tranquility. It was reasoned that such agreements preserved a spouse’s interest in his or her estate and that such agreements resulted in fewer disputes about property after a spouse died. This reassurance presupposed a lesser threat to marital bliss.
It was not until Gross v. Gross, 11 Ohio St.3d 99 (1984), nearly 140 years later, that the Ohio Supreme Court considered the validity of such an agreement upon divorce. Gross recognized that in light of the modern realties, i.e. increases in divorce and the resulting subsequent marriages by spouses that may have already acquired significant assets and/or children, validating such agreements will in fact promote marriage, rather than to encourage divorce.
The current state of Ohio law, then, is that antenuptial agreements, provided they meet certain substantive requirements, are valid whether they are in contemplation of death or divorce.
Add-on Ohio notarization available now:Get your prenup notarized online with our exclusive partnership with Proof (formerly Notarize.com)
Now you can create your prenuptial agreement, collaborate on terms with your partner & optional attorneys, then notarize your prenup—all from your couch. The only thing we can’t do? Get married for you.
If you purchase Attorney Representation with your prenup, Notarization is included.
In 1984 , Gross v. Gross resolved three major issues involved in antenuptial contracts with provisions for divorce.
First, the Court set forth three requirements for valid and enforceable antenuptial agreements:
The Court noted that the second condition would be satisfied by attaching a list of assets to the agreement, or by showing that full disclosure had been made by other means.
Second, the court held that these agreements may be enforced by the party at fault in the divorce in the absence of an express provision to the contrary.
Last, the court held that although a court cannot modify property allocation provisions in these agreements at the time of divorce, the trial court can modify the alimony provisions if the provisions are unconscionable at the time of divorce because of changed circumstances.
Gross also holds that a valid antenuptial agreement must comply with the contract law requirements of disclosure and lack of fraud, duress, coercion, and overreaching.
Further, if a prenuptial agreement has outrageous provisions that favor one side, this can discredit the entire agreement. (For example, a provision requiring a spouse to maintain a certain weight would be considered outrageous.)
Both terms are used in Ohio, but they mean different things.
Dissolution of Marriage. In Ohio, a dissolution of marriage is an action where the parties mutually agree to terminate their marriage. Neither party must prove grounds to end a marriage by dissolution. The parties must agree on all terms when dissolving the marriage (not the court), and if so, they may jointly go to the Court and request a dissolution.
Divorce. Divorce is a civil action to end a marriage. In Ohio, divorce occurs when one party decides to end the marriage and the other party doesn’t. This is known as a “fault” divorce. In the case of divorce, a party cannot prevent their spouse from obtaining a divorce, although it can sometimes be delayed. This is when the court decides how property will be divided and whether spousal support should be granted, guided by Ohio Revised Code § 3105.171.
Below we outline some more specifics about divorce in Ohio. Although you may never need to use this information, we think it is important to understand. The more you know…
The following excerpt is taken from the Ohio Revised Code §3105.01:
To pursue a fault-based divorce in the State of Ohio, you must establish grounds. The following are grounds for a fault-based divorce in Ohio:
>> For the entire fine print, review Ohio Revised Code §3105.01
The 4 ways that a couple can legally end a marriage is through divorce, dissolution, legal separation and annulment. Only one party needs to begin the process of ending a marriage (but don’t get us wrong, it takes two to make a marriage work!). If one party wants to divorce the other party, it is within their sole right to do so, but the other non-participating party does not have to agree to begin the process.
If a divorce proceeding has already begun, and parties have chosen to cooperate with each other, the action may be converted to dissolution by bringing a motion in front of the court for conversion of a divorce action into an action for dissolution of marriage. Ohio Revised Code § 3105.08
We talked about divorce and dissolution earlier, but what about a legal (not religious) annulment? The Ohio Revised Code 3105.31(A-F), Cause for Annulment, lists six (6) ways an annulment can be granted. They are:
>> For the entire fine print, review Ohio Revised Code §3105.31
Each state has residency requirements that must be fulfilled before you can divorce in that state. In Ohio, you or your spouse must have been a resident of Ohio for at least six months prior to filing for dissolution.
If this is not to your liking, you’ll need to specify it clearly in a legal document (such as a prenup) otherwise.
>> For fine print regarding separate property, review Ohio Revised Code § 3105.171
Official term for Spousal Support (also commonly known as Alimony) Upon Divorce, Dissolution of the Marriage or Legal Separation
Ohio offers temporary or permanent spousal support. An Ohio prenuptial agreement that addresses spousal support, unlike property division, “must meet the additional test of conscionability at the time of the divorce or separation,” according to Grove v. Grove , as we discussed above.
>> For the fine print on Ohio Spousal Support, review Ohio Revised Code
Ok, so now how can you use HelloPrenup to create your prenup ?! Many engaged Ohio love birds choose to use the HelloPrenup platform to negotiate and draft their prenup, and then choose to seek legal counsel prior to signing.
The Vanderbilt couple married after already establishing a long-term relationship. Immediately before they married, the couple executed a prenuptial agreement that governed the division of their property and included a mutual waiver of spousal support in the event of divorce. In anticipation of marriage, the couple also designed their dream home, which they built and furnished to their specifications early in the marriage. Throughout their relationship, the wife worked full-time for a county agency and owned a modest home that she shared with the husband. The wife maintained her employment before and throughout the marriage, and her job provided a steady level of income, no-cost health benefits for her, and a public employee pension. During the marriage, the wife used her earnings to fund the couple’s living expenses. She supplemented her stream of income with approximately $60,000 that resulted from the sale of her premarital home, from which she paid for a portion of her children’s college education, an extra automobile, and various living expenses.
The couple enjoyed a higher standard of living due to the husband’s income. When the couple went to divorce, the wife challenged the prenuptial agreement, successfully arguing that the waiver of spousal support in the prenuptial agreement was unconscionable and that a return to her prior living standard would be a hardship. The lower court agreed and awarded her $3500/month in spousal support. The husband appealed on the basis that the couple had waived their rights to spousal support in their prenuptial agreement. The wife argued that the terms of the prenup were unconscionable. The appellate court reversed the lower court, upholding the mutual waiver of spousal support, noting that while a change in the wife’s standard of living changed over the course of the couple’s long relationship, the change occurred before the marriage – not just during the marriage. The court presumed that a change in a standard of living in the event of divorce would have been contemplated at the time of the agreement .
In its conscionability analysis, the Vanderbilt court considered the statutory spousal support provisions that govern the determination of spousal support award under R.C. 3105.18(C)(1). The trial court must consider:
This list of factors is nonexclusive. See R.C. 3105.18(C)(1)(n). The critical factor in this determination, however, is whether there are “ changed circumstances which render the provisions unconscionable as to one or the other at the time of the divorce[.]”
This analysis presumes that the changed circumstances would not have been contemplated at the time of the agreement. Unconscionability of a provision for maintenance and sustenance contained in an antenuptial agreement may be found in several circumstances, such as extreme health problems; change in employability, changed circumstances in the standard of living during the marriage, etc., where a return to the prior living standard would cause a hardship upon a spouse.
This determination does not go to the validity of the prenuptial agreement itself, but to the question of whether spousal support provisions may be enforced at the time of the divorce.
For those of you love birds who cohabitate prior to tying the knot, be sure to contemplate any potential change in standard of living that may occur during the marriage when adding any spousal support terms to your prenup.
