Mark McCown: Prenup must be made before wedding day
Published 12:00 am Tuesday, April 5, 2022
Dear Lawyer Mark: I found out that I was pregnant this past fall, so my fiancé and I decided to go ahead and get married. We were planning on getting married anyway, so it wasn’t a problem. But, we also planned on having a prenuptial agreement.
In fact, we had already talked about all the details, such as what property would remain his, what type of support he would have to give me if we split up, etc.
My question is this: since we ran out of time and didn’t write it down, can we still do it now that we’re married? – Too Late in Proctorville
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Dear Too Late: Ohio Revised Code Section 3103.06 provides that a husband and wife may not enter into an agreement changing their legal relations. This statute, however, is subject to several exceptions.
Those exceptions are prenuptial agreements, certain types of postnuptial agreements and separation agreements.
A prenuptial agreement is an agreement made before you get married that tells how you will divide marital property and pay alimony in the event the two of you later get divorced. While prenuptial agreements are generally held to be valid, it is important to remember that they must be in writing or they will have no effect.
Postnuptial agreements are agreements made during the marriage that affect the legal rights of the spouses.
These are prohibited by Ohio law. However, there are two exceptions to this rule.
The first exception is where a husband and wife enter into a written agreement for the purpose of putting into writing an oral prenuptial agreement.
As stated above, prenuptial contracts must be in writing. If you have already worked out the details of a prenuptial contract, but you have not written it down before your marriage, this exception allows you to do it after you are married. Such an agreement must contain a statement that its purpose is to set forth in writing an oral agreement made before the wedding.
The other exception is referred to as a separation agreement. This type of agreement will be held to be valid when made in anticipation of separation. That means that the husband and wife must have made the agreement with the intent to separate immediately or soon thereafter.
In conclusion, the short answer to your question is, yes, you may enter into what is called a postnuptial agreement.
The agreement will be the same as the prenuptial agreement that you were going to enter into, it just has a different name because you are married now.
Just remember to include a statement that it is the written version of a prenuptial contract that you have already orally created.
THOUGHT FOR THE WEEK: “He who profits from a crime, commits it.” – Ancient proverb
It’s The Law is written by attorney Mark K. McCown in response to legal questions received by him. If you have a question, please forward it to Mark K. McCown, 311 Park Avenue, Ironton, Ohio 45638, or e-mail it to him at LawyerMark@yahoo.com. The right to condense and/or edit all questions is reserved.