Many people have heard of contracts such as prenuptial agreements, also referred to as antenuptial agreements, which are entered into by couples prior to marriage for the purpose of protecting their separate assets in the event of a divorce or death after marriage. Postnuptial agreements are not as common as they are fairly new and are entered into by couples after marriage. They became legally valid and enforceable in Ohio by legislation on March 23, 2023.
Postnuptial agreements are similar to prenuptial agreements. The main difference is that postnuptial agreements are entered into by couples during, as opposed to prior to, their becoming married. With postnuptial agreements, couples can dictate how assets, debts, spousal support and other financial interests are divided between the spouses in the event of a divorce or death. Essentially, postnuptial agreements help answer the age-old question that every couple faces if they end up in divorce or if a death occurs: who gets what?
Couples who find themselves in the throes of a divorce often struggle and dispute over issues relating to children, division of assets and debts, and support. To avoid such disputes, postnuptial agreements can be a great tool in assisting spouses to arrive at an agreement that defines and establishes how such issues would be resolved in the event a divorce occurs.
Additionally, postnuptial agreements are a great tool in assisting spouses to create financial clarity and certainty as to the division of property upon death. For example, a spouse would have peace of mind in knowing that assets will be distributed in a manner agreed upon by the spouses in the event of a death.
Additionally, a postnuptial agreement may be entered into by spouses who previously entered into a prenuptial agreement prior to marriage, but wish to alter or change the terms of their previous agreements after marriage. Overall, a postnuptial agreement fosters transparency between spouses.
On March 23, 2023, Ohio passed legislation which legally recognizes postnuptial agreements and permits spouses to enter into a postnuptial agreement. Specifically, Ohio Revised Code Section 3103.06 states:
“(A) A husband and wife may, by any contract with each other, do any of the following:
(1) Enter into a postnuptial agreement that alters their legal relations with each other;
(2) Modify or terminate an antenuptial or postnuptial agreement or any other agreement that alters their legal relations with each other;
(3) Agree to an immediate separation and make provisions for the division of property and support of either of them and their children during the separation.
(B) An agreement under division (A)(1) or (2) of this section shall comply with section 3103.061 of the Revised Code.”
Each postnuptial agreement must meet very stringent requirements in order to be deemed valid and enforceable. For example, a married couple’s postnuptial agreement must be signed in writing by both spouses and must be entered into freely without fraud, duress, coercion, or overreaching.
To fully understand all of the aspects and requirements of crafting a valid and enforceable postnuptial agreement, it is advisable that you speak with an attorney who has experience in domestic relations practice. Seeking legal advice to assure that you understand your rights before entering into a postnuptial agreement is always a prudent decision.
If you are considering a postnuptial agreement and want to learn more about your rights or you are contemplating the termination of your marriage and need legal assistance, our experienced family law attorneys will guide you through every step of the way. For decades, our attorneys have helped family law clients through divorces, dissolutions, and all other domestic relations matters. Contact us today to learn more about your legal rights if you decide to enter a postnuptial agreement with your spouse.
Marietta M. Pavlidis is a partner and attorney at Plakas Mannos who focuses her practice on all aspects of family law matters.
Michael A. John is an associate attorney at Plakas Mannos who focuses his practice on domestic relations, personal injury, and general litigation.