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Prenuptial Agreements and Postnuptial Agreements

We’ve all heard that “almost half” of all marriages in the United States end in divorce. Okay, but what are the statistics for subsequent marriages that end in divorce? Recent studies show that 67% of second marriages end in divorce and 74% of third marriages end in divorce. Perhaps even more unsettling is that the average duration of a second or third marriage that ends in divorce is only about seven years.

 

Prenuptial Agreements (those entered into before marriage) have long been enforceable in Ohio and were upheld by Courts even before the Civil War. In those days, prenuptial agreements were typically created in contemplation of death instead of divorce and the agreements were widely considered to promote “domestic tranquility” between spouses. The primary drawback, however, was that once the parties married, the prenuptial agreement could not be modified and no new agreements could be created.

 

Effective March 23, 2023, Ohio passed a much-anticipated law that allows married couples to modify their existing prenuptial agreements and to create Postnuptial Agreements (those entered into after marriage) even where no prenuptial agreement existed beforehand. As a result, the use of prenuptial agreements and postnuptial agreements are expanding rapidly in both the family law realm and as a valuable estate planning tool for families.

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Christopher M. Alexander has helped individuals create prenuptial agreements for 25 years. If you need a skilled and experienced family law attorney to guide you through drafting or modifying a prenuptial agreement or drafting a postnuptial agreement, contact Christopher M. Alexander, Esq. at (513) 228–1100 or chris@alexander-legal.com.

"Pre-nups" Aren’t Just for the Rich Anymore

 

As the benefits of prenuptial agreements and postnuptial agreements become more well-known, people from all walks of life are taking advantage of their uses, consider these:

  • To make a financial plan and goals for saving during the marriage

  • To protect the financial and inheritance rights of any children or grandchildren from a previous marriage

  • To protect a business in the event of a divorce

  • To protect one spouse from the debt of the other spouse

  • To protect the financial interests of elderly people

  • To protect the financial interests of those entering subsequent marriages

  • To avoid litigation if you divorce

 

Postnuptial agreements can also be useful to create agreements during marriage such as each spouse’s obligation to pay living expenses and responsibility for debt. For example, what if one spouse incurs significant debt for higher education over the objection of the other spouse? A postnuptial agreement can be created to clarify that the loan payments will be paid solely by the spouse receiving the education and his/her estate, not the marriage as a whole.

 

Will My Agreement Hold Up in Court

 

Under the new law, modifications to prenuptial agreements and new postnuptial agreements will be valid and enforceable provided:

  • The agreement is in writing and signed by both spouses.

  • The agreement is entered into freely without fraud, duress, coercion or overreaching.

  • There was full disclosure, of the nature, value and extent of the property of both spouses.

  • The terms do not promote or encourage divorce or profiteering from divorce.

 

To ensure the validity of a prenuptial agreement or a postnuptial agreement, full and complete disclosure is paramount. A proper prenuptial agreement or postnuptial agreement should include an inventory detailing both spouses’ assets, each asset’s value, and the source of all valuations. Failure to provide full and complete disclosure will often invalidate a prenuptial agreement or postnuptial agreement. 

 

In addition to failing to provide full and complete disclosure, there are several types of prenuptial agreement clauses that courts have consistently invalidated. This includes anything related to child custody or child support, provisions excluding either spouses’ right to counsel, unconscionable spousal support terms, and unusual clauses such as those requiring a spouse to maintain a certain hair color or levying financial penalties for a spouse who gains weight during the marriage.

Christopher M. Alexander has helped individuals create prenuptial agreements for 25 years. If you need a skilled and experienced family law attorney to guide you through drafting or modifying a prenuptial agreement or drafting a postnuptial agreement, contact Christopher M. Alexander, Esq. at (513) 228–1100 or chris@alexander-legal.com.

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