So you’re getting married and now you need to decide whether you should execute a prenuptial agreement. Both Kentucky and Ohio law allow these contracts prior to the marriage to define marital rights and the rights of either spouse upon death or divorce.
Whether you should get a prenuptial or premarital agreement depends on your particular situation. Ohio and Kentucky law protects a party’s premarital and separate property (those things gifted or inherited during the marriage) without the need for a prenuptial agreement. However, in a divorce, premarital or separate assets must be traced by the spouse claiming them as separate. Therefore, a premarital agreement could prove beneficial by clearly defining which assets each spouse had prior to the marriage and define how those assets will be treated during divorce. A prenuptial agreement can also define how marital assets or funds accumulated during the marriage will be allocated upon a divorce. The prenuptial agreement can also go as far as defining support in a situation where one spouse earns significantly more than the other spouse. However, premarital agreements that attempt to limit support can be set aside upon divorce if the court deems that the support award would be unconscionable.
Prenuptial agreements can also define how assets will be divided in the event of one spouse’s death. Prenuptial agreements are often used in second marriages to protect children from prior relationships. The agreements can be used to ensure that assets are protected for the children. Without the proper protections that a prenuptial agreement or estate plan can provide, those assets could be distributed to the new spouse upon death or divorce, despite your intent for the assets to go to your children.
As same-sex couples look to exercise their newly recognized right to marry, a prenuptial agreement should be considered, especially for couples who have been in a long-term relationship prior to their legal marriage. In both Ohio and Kentucky, in a divorce the court must determine what property is marital and divide it equitably. In both states, the court must determine the start date of the marriage and the presumption is the ceremonial date of marriage. Any property that was acquired prior to the start date of marriage is considered non-marital or separate property and is not divided. This should be a cause for concern for those couples getting married after a long-term, premarital relationship.
Be aware that a prenuptial agreement cannot deal with any issues involving child custody or the payment of child support. The issues involving the children have to be decided upon at the time of divorce. They can be agreed upon by the parties and adopted by the court or the court can issue a decision after a trial.
If you determine that a prenuptial agreement is right for you, it is important to remember that the agreement will be enforceable if it is entered into freely without fraud, duress, coercion or overreaching; if there was full disclosure and full knowledge and understanding of the nature, value and extent of the prospective spouse’s property; and if the terms of the agreement do not promote divorce or profiteering by divorce. Parties to a premarital agreement must have a meaningful opportunity to consult counsel. Therefore, it is important (although not required by law) that each spouse has an individual attorney to advise them through this process.
In determining whether a prenuptial agreement is right for you, you should discuss your specific situation with an attorney. Make sure to consult with an attorney in plenty of time to get the agreement finalized and signed before your wedding. This is one factor the courts consider when an agreement is challenged.
The More Things Change: Prenuptial Agreements & Same-Sex Marriage, Ross T. Ewing, Kentucky Bench and Bar, May/June 2016.
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