As recently noted by The Harris Poll, “[f]ew get married expecting to later get divorced, but more couples are entering into a prenuptial agreement — a premarital contract outlining the division of assets in the event of a separation — as part of their wedding checklist.”1 In 2010, just 3% of Americans who were married or engaged reported signing a prenup. But in 2022, that number jumped to 15%, with 42% of surveyed American adults in support of prenups and 35% saying they’re likely to sign one in the future.2
While prenuptial (a/k/a antenuptial) agreements have been around for thousands of years — one of the earliest dates back to ancient Egypt and Jewish law has required a marriage contract (the ketubah) since Talmudic times (70-500 A.D.)3 — they were not generally enforced in the United States until the 1970s, when divorce became epidemic and legislatures began enacting statutes providing for “no-fault” divorce.4 Postnuptial agreements, which are executed after a couple marries, gained even slower acceptance as courts did away with the concept of “marital unity,” which rendered it legally impossible for a husband and wife, who became “one entity” upon marriage, to enter into a binding contract with one another (i.e., with his or herself).
Prenuptial agreements have long been valid in Ohio and couples with a disparity in net worth or creating blended families often turn, before saying “I do,” to such agreements to protect assets and/or provide for children of a former relationship. Until very recently, however, postnuptial agreements were forbidden. Consequently, agreements entered into before marriage could not be changed regardless of how old, outdated or ambiguous they were. Nor could spouses, once married, make similar decisions regarding the disposition of their net worth. Instead, they have been subject to Ohio law that does not permit spouses to be disinherited and dictates the property to which a spouse is entitled.5 Effective March 23, 2023, however, Ohio ceased being one of only two remaining states (Iowa being the other) that did not allow postnuptial agreements.
With the advent of R.C. § 3103.06, spouses are now able to modify their existing prenuptial agreements or enter into agreements regarding disposition of property in the event of a divorce or death based upon real life and/or changes in circumstances since they married. Going forward, they will be able to do careful estate planning, make thoughtful decisions about the division of their assets and, working together, create a safety net for the future.
While a positive step forward, postnuptial agreements must be carefully drafted. Under the new law, which codifies existing common law pertaining to prenups, postnuptial agreements must be in writing and signed by both spouses, and entered into freely without fraud, duress, coercion or overreaching. There must be a full disclosure, or full knowledge, and understanding of the nature, value and extent of both spouses’ property, and the terms cannot promote or encourage divorce or profiteering by divorce.6
The difference between prenups and postnups is, however, more than just timing. When signing a prenup, the parties are in a fiduciary relationship to one another, requiring them to act in good faith, with a high degree of fairness and disclosure of all circumstances that materially bear on the antenuptial agreement.7 Once married, however, there is a heightened, statutory fiduciary obligation between spouses.8 Consequently, postnups will likely receive at least as, if not more, stringent scrutiny by Ohio courts than prenups.
Thirty years ago, in Gross v. Gross, the Ohio Supreme Court ruled that prenuptial agreements are not void per se as being against public policy and that, if otherwise found to be valid, not abrogated as to either party for marital misconduct arising after the marriage.9 As to the terms of the agreement itself, the Court held that, when reviewing the provisions relating to the division or allocation property at the time of a divorce, the applicable standards relate back to the time of the execution of the prenup, not to the time of the divorce.10 If it finds that the parties freely entered into an antenuptial agreement, fixing the property rights of each, a court should not substitute its judgment and amend the contract, even if the division of martial property is not perfect or equal.11
The Court was significantly more circumspect, however, when it came to reviewing provisions in prenups regarding maintenance or sustenance alimony, holding that a further standard of review must be applied — one of conscionability of the provisions at the time of the divorce or separation.12 Although otherwise valid, the provisions relating to maintenance or sustenance may lose their validity by reason of changed circumstances that render the provisions unconscionable as to one or the other at the time of the divorce. Thus, such provisions may, upon a review of all of the circumstances, become voidable at the time of the divorce.13 The same will, presumably, be true for spousal support provisions in postnups by virtue of the statutory fiduciary duties between spouses, although changes in circumstances may be less common or dramatic between the time a postnup is signed and a divorce occurs.
As a final word of caution, as is the case with most legal agreements, an attorney should be consulted before entering into a postnuptial agreement. It is especially important, in this instance, that each spouse have their own, independent legal counsel.
McCoy is a partner at Dinsmore & Shohl LLP and a former President of the CBA. She believes that lawyers should be problem solvers and is dedicated to helping families navigate and find the best possible solutions to the highly personal and emotionally charged issues associated with the end of a marriage.
1 The Harris Poll, More Couples Are Signing Prenups Before Saying “I Do,” https://theharrispoll.com/briefs/popularity-of-prenups-rising-2022/, July 22, 2022 (last visited July 31, 2023).
2 Id.
3 Ancient Origins, Eight foot long scroll reveals Ancient Egyptian prenup, https://www.ancient-origins.net/news-history-archaeology/eight-foot-long-scroll-reveals-ancient-egyptian-prenup-003601 (last visited July 31, 2023); Beinecke Rare Book & Manuscript Library, Art of the Ketubah: Decorated Jewish Marriage Contracts, https://beinecke.library.yale.edu/collections/highlights/art-ketubah-decorated-jewish-marriage-contracts (last visited July 31, 2023).
4 Gross v. Gross, 11 Ohio St. 3d 99, 104, 464 N.E.2d 500 (1984); see also Standler, R.B., Prenuptial and Postnuptial Contract Law in the USA, http://www.rbs2.com/dcontract.pdf, 9-10 (2003).
5 Pursuant to Ohio Rev. Code (“R.C.”) § 2106.01-.08, a surviving spouse has the right to accept what s/he has been given under the decedent spouse’s will, or to elect to take against the will under R.C. § 2105.06. If the surviving spouse elects to take against the will, s/he can take up to one-half of the decedent’s net estate, depending upon whether the decedent had any children. R.C. § 2105.06. Whatever choice the surviving spouse makes, s/he is not barred from his/her rights to additionally purchase certain assets at the appraised value, to receive or remain in the marital residence (mansion house), to receive an allowance for support, to receive up to two automobiles, among others. R.C. §§ 2106.10-.22.
6 R.C. § 3103.061; Gross, 11 Ohio St. 3d at 105, 464 N.E.2d at 506.
7 Gross, 11 Ohio St. 3d at 108, 464 N.E.2nd at 509.
8 R.C. § 3103.05; Belvedere Condominium Unit Owners’ Ass’n. v. R.E. Roark Cos., Inc. 67 Ohio St. 3d 274, 283, 617 N.E.2d 1075, n.3 (1993).
9 Gross, 11 Ohio St. 3d at 105, 464 N.E.2d at 506.
10 Id. at 108, 464 N.E.2d at 509.
11 Id. at 108-09, 464 N.E.2d at 509.
12 Id. at 109, 464 N.E.2d at 509.
13 Id.