Global Family Law Services

‘Postnups’: New tool in Ohio divorce lawyer’s toolbox

| Mar 16, 2023 | Post-Nuptial Agreements, Prenuptial Agreements

Most people have heard of prenuptial agreements. These are contracts that couples enter into before walking down the aisle that outlines what happens with respect to the parties’ finances in the event that the marriage ends due to divorce or the death of either party. On March 23, a similar tool known as postnuptial agreements will be available to married couples in Ohio.

Until this year, Ohio law prohibited postnuptial agreements, often referred to as “postnups.” This meant that married people could not enter into contracts regarding their obligations to one another. This also meant that married couples could not amend prenuptial agreements even if the prenuptial agreement contained an error or if circumstances changed that rendered the prenuptial agreement unfair or obsolete. Now, a 60-year-old couple that entered into a prenuptial agreement in their thirties can freely amend or modify that agreement to align with their current goals and circumstances.

In addition to amending a prenuptial agreement, there are many other reasons why a couple might consider signing a postnuptial agreement. One of the most common reasons is to address changes in the couple’s financial circumstances. Maybe one spouse plans on opening a business. A postnuptial agreement can clarify that the business will remain that spouse’s separate property, along with any debts associated with the business. If one spouse stopped working during the marriage to care for the parties’ children, a postnuptial agreement can create a structure for payment of support to compensate the spouse for the wages lost while staying home to care for the children. Postnups can also be helpful for couples who are experiencing marital difficulties who want to clarify their financial rights and obligations in the event of a separation or divorce.

Like a prenuptial agreement, postnuptial agreements will identify which assets are considered the separate property of each spouse and which assets are considered marital property. A postnup can also establish which spouse will be responsible for paying off certain debts, such as credit card balances or student loans. Postnups can outline the amount of spousal support to be paid in the event of a divorce. Postnups can also outline the amount that a spouse will receive in the event of the death of the other spouse during the marriage. Postnuptial agreements cannot be used, however, to make decisions related to child custody or child support. These issues can only be decided at the time a couple decides to end the marriage based on the best interests of the child at that time.

Like prenuptial agreements, postnuptial agreements require certain elements in order to be enforceable. The agreement must be in writing and signed by both spouses. It must be entered into freely without fraud, duress, coercion or overreaching. It must be made with full disclosure or with full knowledge and understanding of the other spouse’s property. A postnuptial agreement also cannot promote or encourage divorce.

Ultimately, Ohio’s adoption of postnuptial agreements provides married couples with a new way to protect their assets and plan for the future. While postnuptial agreements are not appropriate for every couple, they can be an important tool for couples who want to ensure that their assets are distributed in a way that they both agree on. Couples considering a postnuptial agreement should work with an experienced family law attorney to create an agreement that is legally binding and meets their needs.

This article originally appeared as a column for the Cleveland Jewish News.