What Is a Postnuptial Agreement?
Most people are familiar with prenuptial agreements, contracts drawn up before a couple marries that identify debts and assets and how they’ll be handled if the marriage ends. A postnuptial agreement is similar, except the couple creates the contract after being legally married.
A postnuptial agreement is a recent development in Ohio. Before March 2023, a postnuptial agreement wasn’t legally binding in the state, but legislative changes in early 2023 made them legal. The same legislation also allowed couples to change or revoke prenuptial agreements they may have had.
Should People Consider a Postnuptial Agreement if Their Financial Circumstances Change During the Marriage?
Absolutely, especially if the financial circumstances change in terms of increased assets or earnings beyond what was initially expected.
For example, if one spouse receives an unexpected and large inheritance or publishes a best-selling book, both spouses could have an interest in determining what would happen if the marriage later ends. Hopefully, the marriage wouldn’t end; setting up a postnuptial doesn’t mean that either spouse expects that to happen.
But if it does, it can make the divorce process smoother and less contentious.
What Can and Can’t Be Included in a Postnuptial Agreement?
Think of a postnuptial agreement as a way to handle monetary issues for a couple similarly to a prenuptial. The following are all things that can be included.
- What should be considered marital vs separate property (more on that below).
- How the division of property and assets would be handled in a divorce.
- How debts would be repaid in a divorce.
- If there is to be spousal support and possibly how much and for how long.
- Who will retain ownership of any pets.
- How businesses or investments will be handled.
- How household expenses will be handled in the marriage.
While most monetary and property issues can be handled in a postnuptial, one area that may not be included is child custody and support. The court looks first and foremost at what’s in the child’s best interests when it comes to those proceedings and will not rely on what parents have included in a postnuptial to address that.
Other things that can’t be included are anything that appears to force one spouse to perform an illegal act,
What is Marital vs Separate Property?
When a couple divorces, how assets are divided is often viewed through the lens of marital (or community) property or separate (non-community) property.
- Marital property. Assets acquired during the marriage are usually considered marital property, meaning they belong to both spouses. However, there are some exceptions, including a gift or inheritance given to one spouse only.
- Separate property. Assets that belonged to one spouse before marrying are usually considered separate property and not available to the other spouses. As with marital property, there may be exceptions to this. For example, if a piece of separate property is “commingled” with marital property, it may become marital property. One example of this is if one spouse inherits a home in their name only, but the couple moves into it together and uses joint funds to renovate or maintain it. The court will likely view it as marital property.
Is Ohio a Community Property State?
A community property state is one in which, when a couple divorces, the family court will try to divide community property as close to 50/50 as possible.
Ohio is not a community property state. It’s an equitable distribution state. That means rather than focusing on equal division, the court will look at what is considered fair and equitable. This could end up as something close to 50/50. Or it could end up with one spouse receiving a much more significant portion of the assets than the other. This is another reason developing a postnuptial agreement is recommended, especially if the couple acquires more assets than expected. The court will likely divide property according to the postnuptial.
What Is Required to Make a Postnuptial Agreement Legally Binding in Ohio?
There are four factors that need to be addressed for the postnuptial to be legally binding.
- The postnuptial must be in writing (not oral or on video) and signed by each spouse.
- The postnuptial must have been drawn up with each spouse fully disclosing all debts and assets.
- The postnuptial must have been drawn up with no duress, coercion, or fraud on the part of either spouse.
- The postnuptial may not encourage divorce or any profiteering that could happen in the event of a divorce.
Something that’s not required but is highly advisable is that each spouse should consider working with their own postnuptial attorney for the negotiation to ensure each spouse is fully protected.
What Should I Do if I Want to Draw up a Postnuptial Agreement?
Call the Lawrence Law Office as soon as possible at 614-820-1195 to request a consultation. When financial circumstances change during a marriage that didn’t have a prenuptial, it’s a good idea to draw up a postnuptial to protect your assets in the event of a divorce.
Working on a postnuptial doesn’t mean you’re already planning to get a divorce; some people who draw them up remain married. It’s simply being cautious for the future. Our team of experienced, knowledgeable postnuptial attorneys can help you understand what’s at stake and what the right approach for optimal asset protection could be.
