Perhaps an unavoidable conversation in the coming months as you plan your marriage with your fiancé and loved ones will be whether the two of you should enter into a prenuptial agreement commonly known as a “prenup.” In Ohio, a prenuptial agreement is referred to as an antenuptial agreement.
While antenuptial agreements are sometimes ridiculed and characterized as a sign of callousness, in many instances the opposite is true. A well-drafted antenuptial agreement negotiated by two people that care deeply for each other will serve to protect both you and your fiancé’s rights in the unlikely event that your marriage hits a dead end.
What is an Antenuptial Agreement?
An antenuptial agreement is a contract that two parties enter into prior to marriage which generally outlines the distribution of marital property between the parties in the event they decide to end their marriage. Valid agreements clarify the parties’ respective financial rights and avoids unnecessary arguments throughout the process of divorce or marital dissolution by taking the work of distributing marital property out of the hands of a judge who has likely never met the couple and placing the decision in their own hands.
What Happens if you get Divorced and Don’t have an Antenuptial Agreement?
When a married couple files for divorce and cannot agree on a fair distribution of their property, a court of law steps in to decide what is an “equitable” distribution between the spouses. This process involves first classifying property as either “marital property” which is subject to division among the spouses and “separate property” which is not.
Marital property is generally any property acquired during the marriage by either spouse, irrespective of who takes actual title. This can include assets as large and expensive as your home.
Separate property on the other hand includes property which was:
- Acquired before marriage;
- Acquired by one of the spouses by gift or inheritance;
- Acquired by one of the spouses as a result of a judgment or settlement; and
- Property which has been excluded from marital property by an earlier prenuptial agreement.
The court will then distribute the marital property between the spouses “equitably” but not necessarily equally. Rather, the court is given wide discretion to enforce a fair division of the marital property in consideration of the couple’s full economic circumstances.
Drafting an Enforceable Antenuptial Agreement
If you decide that an antenuptial agreement is right for you and your future spouse, it is important to ensure that it is enforceable. As divorce becomes more and more common, courts have become friendlier to antenuptial agreements. However, they are still examined closely to ensure that the parties have provided one another a full disclosure of their respective financial assets and liabilities, that the agreement was entered into voluntarily, and that both the negotiation process and the terms of the agreement are fair and reasonable. An agreement that fails to pass any of these hurdles may be invalidated by a court.
Schedule a Consultation
We at The Law Offices of Nicholas A. Kulik are excited about your future marriage and are happy to counsel you through drafting an enforceable antenuptial agreement to protect your rights. We welcome the opportunity to review your case and answer any questions you may have.