What’s Up With Prenups and Postnups

The Family Law practice at Isaac Wiles assists clients every day with various marital legal issues. Frequently, they are asked to draft prenuptial agreements, which most of us are familiar with, as well as postnuptial agreements, which come after a couple is married.

This is the first in a series of articles providing some basic definitions, rationale and limitations for both.

All About Prenups:

  • They protect spouses in the event of divorce or one of their deaths.
  • In the event of a divorce, a prenup typically addresses the division of property and spousal support (aka alimony).
  • In the event of death, a prenup addresses the disposition or transfer of property. Without such an agreement, the surviving spouse may elect to receive one-third of the decedent spouse’s estate.
  • Prenups state whether income, assets and debts are separate or marital property and how each will be divided in the event of divorce or handled in the event of death.
  • Parties can also address spousal support in a prenuptial agreement; however, they cannot resolve issues of parental rights and responsibilities, including child support, in a prenup.
  • Prenups must meet certain requirements, including (1) they be in writing (2) they involve a marriage or agreement to marry (3) the parties act in good faith (4) there is full knowledge or full disclosure, including not concealing assets or income (5) it was not made under fraud, duress, coercion or overreaching, and (6) it does not encourage divorce or profiteering by divorce.

All About Postnups:

  • These agreements are relatively new in Ohio. For 130 years, the Buckeye State didn’t allow them. Then, in March 2023, the Ohio General Assembly passed Senate Bill 210 allowing a married couple to enter into postnuptial agreements that alter their legal relations with each other.
  • The main difference between a postnuptial and a prenuptial agreement is that a postnuptial agreement is entered into after marriage.
  • The substantive portions of a postnup regarding income, assets, debts and spousal support are addressed the same way as in a prenup.
  • Similar to prenups, a postnup (1) must be in writing and signed by both spouses; (2) must be entered into freely, without fraud, duress, coercion or overreaching; (3) must have full disclosure or full knowledge and understanding of the nature, value and extent of the property of both spouses; and (4) cannot promote or encourage divorce or profiteering by divorce.