Author: Thomas J. Addesa

DO I NEED A PRE-NUPTIAL AGREEMENT?

Whether you “need” a Pre-Nuptial Agreement really does depend on your goals.  The basic purpose of a Pre-Nuptial Agreement is to decide in advance what will happen with your assets and debts after you get married.  These Agreements can be tailored to your specific needs and goals.  Do you want the normal provisions of marital law to apply if your marriage ends through legal separation, divorce, or dissolution of marriage?  Do you want laws regarding spousal rights in the event of death to control what happens to your property if you are married at the time of your death?

One of the first things to consider is what will happen if your marriage ends by divorce and you do not have a Pre-Nuptial Agreement.  As a general rule, the property and debts that you had before you got married will remain your separate property and debt when you get divorced.  All assets that you acquire during your marriage are considered marital property, unless you received them as a gift or an inheritance.  The same is true with debts – liabilities that you incur after your marriage that are incurred for a “marital purpose” will also be considered debts of the marriage that both spouses will have to share in the divorce.  With a Pre-Nuptial Agreement, you can agree that any asset or debt that you acquire after you get married will remain your separate asset and your separate debt.

You can also make agreements about what will happen to your property if you are married at the time of your death.  In Ohio, spouses can make a claim to a portion of their deceased spouse’s probate assets, even if the deceased spouse had a Will that left nothing to their surviving spouse.  Surviving spouses also have rights related to the marital residence, the right to administer the estate, and other rights.  You can negate the effects of those legal provisions by agreeing to something different in a Pre-Nuptial Agreement.

If you’re thinking of marriage but you’d like to iron out what will happen if the marriage ends in divorce or death, you should consider speaking to an attorney about whether a Pre-Nuptial Agreement is right for you.  But, don’t wait too long.  Some of the basic requirements for a valid Agreement include that it must be in writing, that it is signed prior to the marriage, and that both parties have sufficient time to review the Agreement and get advice from an Attorney.

Thomas Addessa

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