Post Nuptial Agreements in Ohio: What the New 2023 Law Means for Married Couples

Until very recently, Ohio was one of a very few states that did not permit married couples to enter into a Post‑Nuptial Agreement, meaning a contract created between spouses after the marriage. However, in 2023, Ohio passed Ohio Revised Code § 3103.06, which authorizes spouses to enter into a post‑nuptial agreement, modify or terminate an existing pre-nuptial or post‑nuptial agreement, or agree to an immediate separation with defined property and support terms.

In enacting this law, the legislature sought to provide married couples with flexibility while ensuring that no spouse is pressured, coerced, or misled into signing an agreement that affects their legal rights in a divorce or at the death of a spouse. Ohio law requires that these agreements be entered into voluntarily, with full disclosure or full understanding of each spouse’s property, and without fraud, duress, coercion, or overreaching.

There are many circumstances that may lead a couple to consider a post‑nuptial agreement. One common situation arises when spouses previously entered into a prenuptial agreement and later decide they want to change its terms. For example, a prenuptial agreement may have classified all property acquired during the marriage as the separate property of the acquiring spouse. After years of marriage, the couple may decide they now want assets acquired during the marriage to be treated as marital property. A post‑nuptial agreement allows them to make that change under the new law.

Another circumstance involves couples experiencing difficulty in their marriage. A couple may decide to separate temporarily while still hoping to preserve the marriage. During this period, one or both spouses may be concerned about the accumulation of new earnings or assets after the separation date. The new Ohio law allows spouses to agree to an immediate separation and to define property and support rights during that time, giving them clarity if they later decide to divorce.

A post‑nuptial agreement may also be appropriate when one spouse intends to pursue a new business venture or investment that carries financial risk. The other spouse may not want to assume responsibility for potential debts or losses arising from the venture. By creating a post‑nuptial agreement, the spouses can agree that the financial consequences—positive or negative—will be allocated solely to the spouse undertaking the investment. This can protect marital assets while supporting entrepreneurial efforts.

Because the statute authorizing post‑nuptial agreements is relatively new in Ohio, there are currently few court decisions addressing challenges to the validity or enforceability of such agreements. As with prenuptial agreements, courts will eventually be asked to review cases where a spouse seeks to set aside a post‑nuptial agreement, and the developing case law will further define the standards governing these contracts.

It is strongly advised that both spouses seek independent legal counsel if they are considering entering into a post‑nuptial agreement. Each party should fully understand the legal and financial implications, and careful drafting is essential to ensure the agreement is fair, enforceable, and tailored to the couple’s circumstances.