For many couples considering marriage, it may be daunting to contemplate all the implications of that partnership. A marital agreement can be an important tool to protect the financial interests of both parties during a marriage and, if necessary, after a marriage ends in either divorce or death. A knowledgeable and experienced attorney can help you draft an agreement that is both fair and valid.
What Is a Marital Agreement?
There are two primary types of marital agreements:
- Prenuptial agreements
- Postnuptial agreements
A prenuptial agreement is a contract between two people that defines the financial terms of their relationship during marriage and, if necessary, after. While a prenuptial agreement must be agreed to prior to the marriage, it only goes into effect once the couple is married.
Whereas prenuptial agreements are legal in all fifty states, including Ohio, postnuptial agreements – which are entered into after a marriage takes place – are not permitted in Ohio. Section 3103.06 of Ohio law states that “A husband and wife cannot, by any contract with each other, alter their legal relations except that they may agree to an immediate separation and make provisions for the support of them and their children during the separation.” Thus, the only contractual alterations spouses can make to their marriage after they are already married is through legal separation, dissolution, or divorce.
What Are the Advantages of a Prenuptial Agreement?
Many couples might be uncomfortable with even broaching the idea of a prenuptial agreement. Even if they are considering a prenuptial agreement, they might worry that such a step could indicate to their future spouse that they lack confidence that the marriage will last. Nevertheless, there are many good reasons to enter into a marital agreement with your partner prior to marriage, including:
- Improved communication
- Clear expectations
- More control for both parties
- Less anxiety
Finances are a huge part of marriage, and financial disagreements are a leading cause of divorce. Part of the process of entering into a prenuptial agreement includes providing each other with a full disclosure of the assets and debts you bring to the marriage. By sharing this information with your future spouse prior to marriage, you can establish practices of trust and open communication regarding financial matters.
The goal of a prenuptial agreement is to set clear expectations for both parties about how property, debts, business interests, retirement accounts, and even taxes will be handled in case of legal separation, dissolution, divorce, or death.
This kind of clarity can be especially crucial in cases where one spouse has significantly more assets – such as investments, real estate, or retirement accounts – or debts than the other spouse. With a prenuptial agreement, you agree ahead of time if and how these assets or debts will be allocated in the case of divorce. The agreement also can specify how you want your assets allocated if you should pass away before your spouse.
A prenuptial agreement can also be helpful if either you or your future spouse have children from a prior relationship. A prenuptial agreement can provide clarity for how these children will be supported and can also identify how any future children might impact the agreement. By entering into a prenuptial agreement with your future spouse, you can also protect your assets on behalf of your children in case of divorce or death.
It is important to remember that if you choose to marry without a prenuptial agreement, you are already agreeing to abide by Ohio’s laws as the default agreement in case of separation, dissolution, divorce, and death. A prenuptial agreement lets you and your future spouse have more control over your financial futures.
Thus, while discussing a prenuptial agreement with your partner might be difficult at first, taking this step could lead to improved communication around financial issues and set clear expectations, thereby reducing anxiety and uncertainty and setting a solid foundation for your future marriage.
How a Lawyer Can Help Ensure Your Marital Agreement Is Valid
In order for a prenuptial agreement to be enforceable by the court, you must establish that your martial agreement meets all the legal requirements for validity, including:
- It is in writing
- It is lawful
- It does not encourage divorce
- Its terms are fair both at the time of the agreement and when seeking enforcement
- Both parties fully disclose all assets and debts
- Both parties enter the agreement freely (not under duress, fraud, or coercion)
- Both parties sign the contract prior to the wedding
While Ohio law does not require you to work with an attorney to draft your marital agreement, doing so can help to ensure that your prenuptial agreement is legally valid and will hold up in court. A knowledgeable family law attorney can draw upon their experience to help draft the agreement, so it is tailored to your shared needs and protects both of your interests. Alternatively, if you choose to write your own prenup, a lawyer can still assist by providing a review of the agreement to ensure it is fair and to prevent any language that might render the agreement invalid.
Do you need help drafting a marital agreement in Greene County? Contact Crossman and McNamee, LLC today at (937) 468-3796 or fill out our online form to schedule a consultation!