Under Ohio law premarital (or prenuptial agreements) are valid, enforceable contracts. There are, however, limitations on what can be governed by these contacts. You must also be careful in constructing the contract that there has been full disclosure of assets to both parties and that there has not been fraud, undue influence or coercion. A classic example of undue influence/coercion is where one party presents the agreement to the other party on the day of the wedding when the person’s emotions and absence of time for review prevents the other party from rationally evaluating the agreement. When contemplating a prenuptial agreement, you should have the document drafted in sufficient time to allow the other person to seek whatever counsel they need to evaluate the significance of the documents. There is no definite time required, but obviously the longer the other party has a chance to review the document the better. You should never discourage the other party from seeking their own legal counsel. You should also completely disclose your assets and debts to the other person if you wish the agreement to be valid and enforceable.
You should also be aware of what cannot be the subject of prenuptial agreements and how prenuptial agreements are the products of Ohio’s divorce laws. First, the agreement cannot attempt to divide property that is clearly acquired during the marriage. You can, however, clearly identify property/debts that existed prior to the marriage and have the person owning that property retain that property/debts in the event of a divorce. You may also use the agreement to retain property that you may receive during the marriage as the result of gifts or inheritances. If you are dealing with property that existed before the marriage or received during the marriage as the result of gifts or inheritances, you still must be careful to keep that property (or any property later acquired with that property) separate from the property acquired during the marriage. For example, you can state that you will retain stock in XYZ Corporation and still sell that stock and purchase stock in ABC Corporation and retain those newly acquired stocks as separate property as long as the new property can be clearly traced to the separate property. You must, however, be very careful not to commingle your separate assets with assets clearly acquired with marital property as this may be construed as evidencing a donative intent or destroy the ability to trace the property.
A prenuptial agreement cannot attempt to limit child support or predetermine custody. The reason for this is quite simple. The standard for allocation of parental rights under Ohio law is the best interest of the child. Obviously the terms of the agreement drafted years before the child was born may not be in its best interest at the time the child’s parents divorce. The issue of spousal support is not as clear. The Courts may enforce provisions concerning spousal support as long as such provisions are fair at the time of the divorce and are consistent with Ohio spousal support statutes.
There is no standard or “cookie cutter” prenuptial agreement. These documents are very fact and situation specific. Even if you and your intended spouse have a good idea of what you want to accomplish with such an agreement, you should nevertheless have legal counsel who is familiar with Ohio family law draft the agreement.