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Frequently asked questions about prenuptial agreements

What is a prenuptial agreement?

Though the term, prenuptial agreement, is often viewed solely as legal protection against potential divorce, it is much more than that. It is a binding agreement entered into before marriage by both parties that details how assets and income will be assessed should that marriage end in separation, divorce or death.

Why have a prenuptial agreement?

A prenuptial agreement was once almost solely for the wealthy or people entering a second marriage. The reason was that a divorcing couple often had children and had accumulated more assets than a couple in a first marriage.

Today, it is increasingly probable that individuals marrying for the first time have already accumulated significant assets before marriage. Generally, both parties have either graduated college or been in the workforce long enough to accumulate assets that neither wants to lose in the event of divorce.

People with friends or family who have been the unfortunate object of disproportionate divorce settlements are often more aware of the potential need for a legally binding agreement before marriage.

Will a prenuptial agreement hold up in court?

Ohio state law controls prenuptial agreements and generally looks to make sure the agreement is in writing, based on mutual agreement prior to the marriage and that the couple entered into marriage. If either party proves that he or she did not fully understand what the agreement entailed, if both sides were represented by the same attorney, or if one side does not have representation while the other does, the agreement may be considered invalid. A prenuptial agreement may also be deemed invalid if either party failed to disclose or hid assets, or if the agreement is unfair or one-sided.

In addition, certain issues cannot be resolved in a premarital agreement, namely child custody and support issues. In Ohio, a couple may plan for come costs and childcare responsibilities in a prenup. However, courts will consider the best interest of the child when making decisions about child custody, visitation schedules and support payments.

When it comes to children and assets, doesn't a will accomplish the same thing?

A will is the action of one individual and that individual can change the will without his or her spouse's consent. Should both parties in a marriage will 50 percent of their separate estates to their children and one dies, a surviving spouse can get create another will that designates only his or her children as recipients of both estates.

A prenuptial agreement provides a contract that is binding on both parties in life or death.

What if we failed to do this before our marriage?

A postmarital agreement accomplishes almost the same thing as a premarital agreement. The one major difference is one or both parties can refuse marry unless a prenuptial agreement is not entered into. A postmarital agreement will not be considered valid should either party claim the agreement was not voluntary. When divorce is looming, people are not often as willing to enter into an agreement of any kind.

If you are considering entering into a prenuptial or postnuptial agreement, contact an experienced family law attorney at Rieth Antonelli & Raj. We can explain the issues that can be addressed in a prenuptial agreement, answer your questions and help you determine if a prenup is right for you based on your circumstances. 

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