Prenuptial agreements, most often referred to as “Prenups,” tend to have an unfair reputation as a societal matter. In fact, it’s not uncommon for critics of prenuptial agreements to view them as the most pessimistic way to start a marriage—in effect, signaling the end of the marriage before it has even started.
Exploring the Concept of Prenuptial Agreements
While it’s true that a prenuptial agreement does address what will happen to an engaged couple’s assets, liabilities and finances if the intended marriage were to subsequently terminate, the process of negotiating and entering into a prenuptial agreement is not inherently negative. Many engaged couples enter into a prenuptial agreement for purposes in addition to addressing what will happen to their property and financial matters upon a termination of the marriage. These possible other purposes for a prenuptial agreement include, but are not necessarily limited to, memorializing agreements on certain marital financial planning matters as well as estate planning matters.
What is a Prenuptial Agreement?
In this two-part series, we will take an in-depth look at prenuptial agreements—specifically: ( (1) what they are, and (2) what engaged couples should consider when preparing and negotiating one. In this first installment in this series, we address a most basic, but critical question: what is a prenuptial agreement?
A prenuptial agreement is a written contract that is negotiated and entered into by a couple before they are legally married. Generally speaking, a prenuptial agreement alters the rights that the parties would otherwise have by virtue of their marriage to each other, including financial and property rights upon a termination of the marriage, as well as rights of descent and distribution in the case of the untimely death of one of the parties.
Legal Requirements for Validity
In order to be a valid and enforceable prenuptial agreement, Ohio law requires that it meet the following criteria:
- It must be in writing and be signed by both intended spouses
- It must be entered into freely without fraud, duress, coercion or overreaching
- The intended spouses must have made a full disclosure of, or have had full knowledge and understanding of, the nature, value and extent of their respective assets, liabilities, and finances
- It must not, by its terms, promote or encourage divorce or profiteering by divorce
When Does a Prenuptial Agreement Take Effect?
A prenuptial agreement only becomes effective upon the validation of the parties’ marriage. In this way, if a couple negotiates and enters into a prenuptial agreement, but the intended spouses do not actually get legally married, the prenuptial agreement typically becomes null and void after an identified date.
Importance of Legal Representation
Notably, to the extent that the couple would like to have legal counsel in connection with the preparation, negotiation, and execution of a prenuptial agreement, it is required that each intended spouse obtain his or her own attorney. While this comes as a surprise to many engaged couples, the reason for this is simple: even if the intended spouses are in complete and total agreement as it pertains to the terms of the prenuptial agreement, each party still has conflicting legal interests. Accordingly, in Ohio, it would be a conflict of interest for one attorney to represent both spouses in connection with the preparation, negotiation and execution of a prenuptial agreement.
Of course, in order to be a valid prenuptial agreement, it is not required that each intended spouse (or either intended spouse, for that matter) be represented by counsel. However, given the breadth of the issues that are typically addressed in prenuptial agreements, the legal rights that an intended spouse may be giving up in connection with a prenuptial agreement, as well as the complexities inherent in the same, it is always advisable for both parties to be represented by counsel experienced in domestic relations law.
Seeking Professional Guidance
Once an engaged couple has decided they want to enter into a prenuptial agreement prior to their intended marriage—and, preferably, after each intended spouse (or at least one intended spouse) has retained experienced counsel—what comes next in the process? We will address what engaged couples should consider when preparing and negotiating a prenuptial agreement in part two of this series.
If you or your intended spouse are considering a prenuptial agreement and want more information, the experienced attorneys at KJK Family Law can help. If you need assistance on these or other domestic relations matter, please contact Janet Stewart Scalley at js@kjk.com or by phone at (216) 696-8700.