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ments 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 divi- sion of their assets and, working together, create a safety net for the future.
While a positive step forward, post- nuptial agreements must be carefully drafted. Under the new law, which codi- fies 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 agree- ment.7 Once married, however, there is a heightened, statutory fiduciary obligation between spouses.8 Consequently, post- nups 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 prenup- tial agreements are not void per se as being against public policy and that, if other- wise 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 prop- erty 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 agree- ment, fixing the property rights of each, a court should not substitute its judgment and amend the contract, even if the divi- sion 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 void- able 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 circum- stances 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/populari- ty-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-re- veals-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/dcon- tract.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 chil- dren. 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.
THE REPORT | September/October 2023 | CincyBar.org
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