USA – OHIO Law and Practice Contributed by: Andrew A Zashin, Amy M Keating, Kyleigh A Weinfurtner and Christopher R Reynolds, Zashin Law
Prenuptial Agreements Prenuptial agreements have been determined to be valid and enforceable under Ohio law since 1984. While there is no statute governing pre - nuptial agreements, Ohio courts have held pre - nuptial agreements to be binding and enforce - able if: • the agreement was entered into freely and voluntarily, without fraud, duress, coercion or overreaching; • there is full financial disclosure by each of the parties of the nature, value and extent of their assets; and, • the terms of the agreement do not encourage divorce or profiteering by divorce. Prenuptial agreements cannot include provi - sions regarding future custody or child support. Similarly, if a prenuptial agreement contains pro - visions about spousal support in the event of a divorce, the court can evaluate the spousal support award set forth in the agreement at the time of the parties’ divorce based on a different legal standard; if the spousal support provision in the agreement is “unconscionable” at the time of the parties’ divorce, Ohio courts have discre - tion to award a different spousal support award from the one outlined in the parties’ prenuptial agreement. Postnuptial Agreements A postnuptial agreement is a contract entered into between spouses after the date of mar - riage. Until this year, Ohio law prohibited post - nuptial agreements. This meant that married couples could not enter into contracts regard - ing their obligations to one another unless they also agreed to immediately separate pursuant to the terms of a separation agreement incident to terminating the marriage or obtaining a legal separation. Now, married couples can enter into
agreements with one another regarding issues such as property division and spousal support without having to agree to an immediate sepa - ration. Parties may want to enter into postnuptial agree - ments for various reasons. Some may want to correct an error in a prenuptial agreement or update that agreement based on changed cir - cumstances. Others may want to clarify the separate property of each spouse, to establish which spouse is responsible for paying off cer - tain debts incurred prior to or during the mar - riage, and others may want to clarify who retains ownership of pets in the event of a divorce. Post - nuptial agreements cannot be used, however, to make decisions related to child custody or child support. Child custody issues are based on the best interests of the child or children, as the court determines them, pursuant to Ohio’s relevant legal codes at the time of divorce. For postnuptial agreements to be valid and enforceable, parties must ensure that they comply with certain formalities outlined in R.C. 3103.061 and functionally track the require - ments for valid prenuptial agreements. Namely, a postnuptial agreement must be: (i) in writing; (ii) signed by both spouses; (iii) entered into freely without fraud, duress, coercion or overreach - ing; and, (iv) made with full disclosure or with full knowledge and understanding of the nature, value and extent of the other spouse’s prop - erty. Like a prenuptial agreement, a postnuptial agreement must also not promote or encourage divorce. 2.6 Cohabitation Ohio stopped recognising common law marriage in October 1991 (unless the facts giving rise to a common law marriage occurred entirely prior to October 1991). Because of this, Ohio domes -
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