A prenuptial agreement is an excellent way for spouses to take control of their finances as they enter marriage. Generally, a prenuptial agreement is a contract between spouses that determines how they will divide their property in the event of divorce or death. In this way, a prenuptial agreement can trump any of Ohio’s laws on equitable distribution. A spouse can also waive a right to alimony in the prenuptial agreement.
But how long does a prenuptial agreement last? Technically, it should last until death or divorce, whichever comes first. But spouses can also include a “sunset clause” in their agreement. If you are interested in a prenuptial agreement, meet with an Ohio prenuptial agreements attorney to think carefully about what terms you want included in this document.
Two Types of Sunset Clauses
We typically see two different types of sunset clauses. The first states that the prenuptial agreement will no longer be valid after a certain date or after a certain number of years of marriage. For example, a couple can decide their prenuptial agreement will expire on their 10th wedding anniversary.
A second type of sunset clause is the “phase out.” Basically, this type of provision provides more assets to the less wealthy spouse the longer the marriage lasts. It could look like this:
- First 5 years of marriage: no assets in the event of divorce and no alimony
- Between 5 and 10 years of marriage: $500,000 in assets and $5,000 a month in alimony for 10 years
- Between 10 and 15 years of marriage: $1,000,000 in assets and $7,500 a month in alimony for life
- More than 15 years: Equal division of marital property and $10,000 in alimony for life
This type of phase-out creates an incentive for the less wealthy spouse to stay married longer because they will receive more assets the longer the marriage lasts. Other phase-out provisions provide increasing amounts of money for each year of marriage.
Decide if You Want a Sunset Clause
If your prenuptial agreement is silent on how long it lasts for, then it lasts indefinitely—or, more accurately, for the entire duration of the marriage. So don’t feel like you need to include a sunset clause if you don’t want one.
Why do people like a sunset clause? Reasons vary, but one common reason for their use is that a person wants to test out a marriage. They don’t really know if they will get along, and a sunset clause provides some protection in the event the marriage unravels quickly.
Sunset clauses can also enhance the appearance that the prenuptial agreement is fair. Some judges might not look kindly on a prenuptial agreement that completely cuts off a spouse, even when the marriage has lasted for decades. Including a sunset provision helps make the agreement look less lopsided.
One Reason Not to Use a Sunset Clause in an Ohio Prenuptial Agreement
Some couples decide that they will include a sunset clause so that they can renegotiate their prenuptial agreement in the future. So they might include a 10-year expiration date and then create a new agreement at that point.
If you live in Ohio, you should not do this. Unlike other states, Ohio does not allow couples to create post-nuptial agreements, which is what this type of agreement is called when created after marriage. Ohio Revised Code section 3103.06 states a postnuptial agreement is valid only if drafted in contemplation of separation or divorce.
Is a Sunset Provision Right for You?
Let’s say you want a sunset provision because you want to “test drive” a marriage without any financial risk. You think a five-year sunset provision provides ample protection. But is this the right move for you?
Maybe not. If the prenup lasts for only 5 years and you divorce on year 6, you can lose a considerable amount of money. Had the agreement not expired, you would still be protected. In most cases, having a prenuptial agreement that lasts indefinitely is the better option. You can use other techniques to make it look less unfair.
A prenuptial agreement is also an excellent bargaining tool in divorce negotiations. If you want to provide your ex with more assets than what is included in the prenup, then that’s up to you. But a valid prenup agreement is still the fall back option if your spouse tries to take you to the cleaners.
Speak to an Ohio Prenuptial Agreements Attorney
Drafting an air-tight prenuptial agreement takes work. Rather than go it alone, meet with an experienced attorney at Lawrence Law Office. We have drafted many prenuptial agreements and know how to create one that will stand up in court. Contact us today to schedule a consultation.