Page 12 - September October 23 Report

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THE REPORT | September/October 2023 | CincyBar.org
Alter After the Altar
Postnuptial Agreements Now Valid in Ohio
As recently noted by The Harris Poll, “[f]ew get married expecting to later get divorced, but more couples are entering into a prenuptial agree-
ment — 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 Amer- icans 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 antenup-
tial) 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 Post-
nuptial 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
Jean Geoppinger McCoy
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 chil- dren of a former relationship. Until very recently, however, postnuptial agree- ments 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 Consequently, agreements entered into before marriage could not be changed regardless of how old, outdated or ambiguous they were.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 dispo- sition 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 agree-
By permission of Leigh Rubin and Creators Syndicate, Inc.