A prenuptial agreement allows a couple to decide what will happen to assets if they divorce. It can also help determine what happens in the event one spouse dies. However, many people get married without a prenup and then realize they need one. What can you do at this point?
Some people as the question, “what is a postnuptial agreement, and can it help me?” Unfortunately, Ohio does not currently allow a couple to create a post-marriage prenup – so there is no difference between a prenup and postnup. This is different from the law of many other states, which permit couples to create an agreement after marriage. Legislators in Ohio who defend our law apparently believe that any kind of postnuptial agreement could have the effect of encouraging divorce, which they want to avoid.
There are many reasons that Ohio’s law is not in the best interest of couples, but it is the law, nonetheless. In fact, Ohio Revised Code § 3103.06 says that a couple cannot use a contract to change their legal relations. This means that you cannot have your spouse sign a postnuptial agreement, no matter how much you both agree to the terms.
There is one exception provided in the statute. If you are agreeing to an immediate separation, you can make provisions for the support of the children and your spouse. In other words, you can come up with a separation agreement, but each side knows that the relationship is ending when they sign it.
What Can You Do To Protect Your Property?
The fact that you cannot sign a postnuptial agreement does not mean you will be taken to the cleaners when you divorce. You should still meet with an attorney to discuss your options.
For example, you can clearly identify property. If you inherit something or brought property into a marriage, you might need to segregate it. For example, you shouldn’t take an inheritance check and simply deposit it into your joint bank account. You can instead create a separate bank account for the money. A person can typically exit a divorce with their separate property so long as it has not been commingled with marital assets.
You can also encourage your spouse to work and gain experience. The more self-supporting your spouse, the less likely he or she will need support after a divorce.
Lastly, you might be worried about leaving property to your children from a previous relationship. At death, your spouse can claim a share of your estate regardless of what is in your will. This “elective share” helps guard against a person disinheriting their spouse. Unfortunately, the elective share can cut into the legacy you hope to leave your children. Meet with an attorney to discuss options for protecting your assets.
What If You Haven’t Married Yet?
Then you can draft and execute a prenuptial agreement. Meet with an attorney who can make sure your agreement is drafted properly and you don’t coerce your partner into signing it. Judges will uphold a prenuptial agreement at divorce, but you must have it drafted the right way.
Will Ohio Recognize a Valid Postnuptial Agreement from Another State?
This is an interesting question. People move around today more than ever before, and you might have signed a postnuptial agreement in your former domicile state before moving to Ohio. If you choose to divorce in Ohio, will our courts enforce this agreement that was valid in your former home?
Probably not. However, you should meet with an attorney to discuss how an Ohio judge is likely to analyze your divorce.
What If We Are Separating?
The law explicitly states you can create a separation agreement and Ohio will recognize it. The best separation agreements are comprehensive and should discuss child support, spousal support, and the division of marital property and debts. Your attorney can help you analyze what property you need to divide if any, and what you should negotiate for. Separation is just as complicated as divorce and requires careful planning with a lawyer’s assistance. You don’t want to go into separation without having given serious thought about your financial needs.
Speak To An Ohio Divorce Attorney
Separation and divorce usually strike like a bolt out of the blue. Many people never imagined they would not be married for life. However, many couples who walk down the aisle will soon walk into divorce court, and you need to be prepared.
If you need help, please give us a call. You can schedule a consultation with one of our attorneys.