What is a Prenuptial Agreement?
Prenuptial agreements, or antenuptial agreements, are legal documents that establish two spouses’ property and financial rights in the event of a divorce. This type of agreement is typically used to protect the assets of the wealthier party but can also serve to protect family businesses and other vital functions. Generally, prenups protect all assets that may otherwise be subject to marital property laws upon the dissolution of the marriage.
What is Included in a Prenup?
While all prenups serve as a roadmap to separating assets, in the State of Ohio, some of the more common provisions include:
- Property division in the event of divorce or death
- Financial account organization
- Shared and separate assets
- Repayment of individual debt
- Pet custody in the event of divorce or death
- Protections for children from a previous marriage
- The management of a business in the event of divorce or death
A prenuptial contract is considered valid if:
- It exists in its written form
- The terms do not encourage divorce
- Both parties completely disclose their finances, debts, property, and all other assets
- Neither party enters the agreement under duress, fraud, or coercion
- Both parties sign the contract in front of two witnesses before the date of the wedding
What Should be Excluded from a Prenup?
The following items cannot legally be addressed in an Ohio-based prenuptial agreement:
- Child custody or child support
- Provisions excluding the right to counsel
- Incentive to commit illegal acts
- Incentive for divorce
- Unfair, unjust, or deceptive terms
- Outrageous conditions favoring one party
- Unconscionable spousal support provisions
- Clauses that are not financial
How Does Ohio Divide Assets During Divorce?
Ohio is an equitable distribution state. This means that, during divorce proceedings, a court will attempt to divide all marital property and assets in a fair and equitable manner. In Ohio, property is classified as either marital property or separate property. Marital property is any property that is acquired during the marriage and can often include the home, personal property, and bank accounts.
Separate property is acquired prior to the start of the marriage. It can consist of property acquired during the marriage, such as gifts and inheritance or settlements. When marital property is divided, and no prenup is available, the court will consider:
- The duration of the marriage
- Each spouse’s assets and liabilities
- When child custody is involved, whether the custodial parent would benefit from remaining in the marital home
- The liquid value of the property to be divided
- The value of keeping an asset intact rather than dividing it
- The tax consequences of the property division
- The costs of selling an asset in order to effectuate an equitable distribution of property
- The existence of a separation agreement concerning property division
- Retirement benefits
- Any other factors the court deems relevant and equitable
How is Alimony Decided in Ohio?
The State of Ohio recognizes two types of spousal support or alimony: temporary and permanent. Temporary spousal support occurs during the divorce process or when one is pending.
Permanent spousal support refers to a judge’s order for lasting support until there is a justified change in circumstances to reduce or revoke the support completely. Some factors used to determine permanent spousal support are:
- Income, including property income
- Earning abilities, including possible change in those abilities due to childcare
- Age of each party
- Retirement benefits of each party, including pensions, insurance, and retirement accounts
- Duration of marriage
- The ability of both parties to work outside the home, considering childcare
- Established standard of living during the marriage
- Education of each party
- Assets and liabilities of each, including all court-ordered payments
- Each party’s contribution to the other’s education or training, including childcare that was handled while the other spouse was pursuing said education or training
- Expenses necessary for education or training
- Tax consequences of proposed spousal support
- Lost income due to sacrifice for the marriage, including lost income while the other party was furthering their education or training.
How Does a Prenup Affect Property Division and Alimony?
While the purpose of a prenuptial agreement is for a couple to agree to the division of assets in the event of divorce, this does not mean that a judge will also agree to the terms. For the most part, when a valid prenup is presented, the terms can be reasonably upheld.
However, if a judge finds certain terms to be unconscionable or unfairly one-sided, that judge may omit or revise the term fairly.
How Can I Contest a Prenuptial Agreement?
Once both parties have agreed upon the terms of a prenup, it can take a lot of work to change the agreement. Here are a few ways the contract may be changed:
- The contract was signed by force. For a valid prenuptial agreement, both parties should sign willingly. Proving that one party pressured another party into signing, whether by physical or emotional coercion, may invalidate the document.
- The agreement is unfair. This usually occurs when one party has significantly more assets than the other at the time the contract was signed.
- There was no lawyer present. For a valid prenuptial agreement, both parties should have their own layers. This ensures that the client understands the agreement and all of the implications.
Do I Need an Attorney?
If you are considering divorce and currently have a prenuptial agreement in place, you need a lawyer on your side. Call our team of lawyers at Lawrence Law Firm today at 614- 228-3664 or fill out a contact form for a consultation.
