Getting married is a big decision. Indeed, not only are you committing to spending the rest of your life with someone, but you are also making a big financial choice, too – once you get married, your and your spouse’s financial choices will be intertwined.
For multiple reasons, including the protection of both personal and family assets, entering into a prenuptial agreement with your soon-to-be spouse may be a good idea. At the Lawrence Law Office, our family law lawyer is here to answer your questions about prenuptial agreements and help you draft an agreement today.
What Is A Prenuptial Agreement?
A prenuptial agreement is a legal document that is entered into by two parties prior to the parties’ marriage to one another. Typically, these types of documents resolve financial disputes that would arise in the event of divorce or death of one party, such as how property will be divided, whether or not a spousal maintenance award will be part of a divorce settlement, and more. The agreement, while created prior to marriage, does not take effect until after marriage.
Do Prenuptial Agreements Hold Up In Court?
Whether or not an Ohio court will enforce a prenuptial agreement depends upon whether or not the agreement is valid and conscionable. In order for a prenuptial agreement to be valid, and therefore for a court to enforce it, the following must be true:
- Both parties must have entered the agreement willingly and voluntarily;
- Each spouse must have made a full financial disclosure – if assets or debts were hidden, the agreement may not be valid;
- The agreement must be fair and conscionable (any unconscionable agreements will likely not be enforced); and
- The agreement must be legal and may not encourage divorce or separation.
If you have questions about whether or not your specific prenuptial agreement will be enforced in court, you should ask your attorney to review it for you and provide feedback.
Does A Prenuptial Agreement Survive Death?
Most prenuptial agreements not only outline what will become of assets, property, and debts in the event of a separation of the spouses or a divorce, but also what will happen in the event that either or both of the parties die. In fact, premarital agreements even trump state property laws (regarding the division of property at time of death via intestacy rules). As such, if your prenuptial agreement is both valid and has stipulations in it that are specific to what should happen should death occur, then yes – the prenuptial agreement will likely survive death.
How To Get A Prenuptial Agreement
If you are thinking about a prenuptial agreement, your first step should be to discuss the possibility with your future spouse. Often times, premarital counseling can serve as a safe space to have the discussion, as well as a place where you can learn the best ways to talk about such things effectively. If you and your future spouse are both in agreement about the benefits of a prenuptial agreement, the next step should be to meet with a lawyer, who will guide you through the process. A thorough assessment of each of your financial situations will be necessary before an agreement can be entered.
How To Nullify A Prenuptial Agreement
In some cases, a prenuptial agreement can be rendered legally null and void after its creation. A prenuptial agreement might be declared null if it is formed verbally rather than put in writing, if one spouse enters the agreement under coercion or duress (and can prove this), if either spouse failed to fully disclose their financial circumstances, if the document was signed without witnesses, if there was an improper execution of the agreement, if there are any provisions that violate public policy, or if there are any provisions that are grossly unfair and unconscionable.
What Is Included In A Prenuptial Agreement?
Most prenuptial agreements stick to financial matters only. For example, things that are commonly included in a prenuptial agreement include:
- How property should be divided in a divorce or death;
- The inheritance rights of any children to the marriage or children from a previous marriage;
- Details of spousal maintenance award;
- Who has the right to control property and assets;
- How debts of either party will be managed and what the rights of the other party concerning those debts will be;
- Rights regarding inheritances or gifts to either party; and
- Any other financial matters.
What To Know About Prenuptial Agreements
Something that’s important to know about prenuptial agreements is that matters of child custody and child support cannot be detailed in a prenuptial agreement. Prenuptial agreements also cannot include any provisions that are unreasonable, such as one spouse completely forfeiting their rights to any alimony in the event of a divorce.
Another thing to know is that premarital agreements require attention to detail, and anything that’s overlooked could eventually render the agreement null and void. As such, working with a qualified attorney who has experience forming prenuptial agreements is strongly recommended.
What To Include In A Prenuptial Agreement
You should include stipulations regarding all financial matters, as well as any businesses, real estate, real property, retirement accounts, investments, stocks, and other assets that you own. It is also wise to include language regarding debt accumulations of either party. Talk to your attorney about the specifics of your situation to learn more about what you should include in your prenuptial agreement.
Can A Prenuptial Agreement Be Broken?
If a prenuptial agreement is valid, then neither spouse is allowed to deviate from the agreement at the time that it becomes enforceable. However, either spouse could agree to change the agreement and amend the prenuptial agreement at any point during the course of the marriage, or even after the marriage has been terminated.
Reach Out To An Experienced Divorce Lawyer Today
If you have more questions about prenuptial agreements, our divorce and prenuptial agreement lawyer at the Lawrence Law Office is available to answer your questions and provide you with qualified legal advice. To learn more, please call us directly or send us a message today.